A  TREATISE 


LAW    OF    MOETGAQES 


KEAL    PROPERTY. 


LEONARD   A.   JONES, 

OF  THE  BOSTOX  BAR. 


IN  TWO   VOLUMES. 

VOL.  L 


BOSTON: 
HOUGHTON,   OSGOOD   AND   COMPANY. 

1878. 


Copyright,  1878, 
By  LEONAKD  A.  JONES. 


CAMBRIDGE  : 

^rintfU  at  tljc  Bi&crsitic  ^rcsB, 
By  1I.,0.  Houghton  &  Co. 


I 


TO  THE  HONORABLE 

GEORGE  TYLER   BIGELOW,  LL.  D. 


FORMERLY 

CHIEF  JUSTICE  OF  MASSACHUSETTS, 

IN  TESTIMONY  OF  THE  HIGH    REGARD  IN  WHICH    HIS    SERVICES 
ON  THE  BENCH  ARE  HELD, 

Ci)t^  Creatine  t^  Sru^crifijlr 
BY  THE  AUTHOR. 


PREFACE. 


The  Law  of  Mortgages  is  a  subject  which  cannot  be 
treated  altogether  with  reference  to  general  principles. 
At  the  present  time  two  opposite  theories  of  the  nature 
of  a  mortgage  hold  about  equal  sway  in  this  country, 
and  this  difference  of  view,  at  the  foundation  of  the  sub- 
ject, has  naturally  led  to  many  divergences  in  the  details 
of  it.  It  is  a  subject,  too,  which  legislation,  directly  and 
indirectly,  largely  controls.  All  that  part  of  it  which  re- 
lates to  remedies  is  closely  connected  with  the  systems  of 
Civil  Procedure  in  the  several  States,  which  are  quite  dis- 
similar. The  author  has  endeavored  to  follow  a  natural 
order  of  arrangement  in  this  treatise ;  and  while  present- 
ing not  merely  the  common  law  of  the  subject,  but  as 
well  the  modifications  of  that  law  made  through  statutory 
enactments  and  judicial  decisions,  in  order  to  avoid  con- 
fusion of  statement,  and  to  enable  one  who  consults  the 
book  to  turn  with  as  little  trouble  as  possible  to  the  state- 
ment of  the  law  upon  any  part  of  the  subject  for  any  State 
in  the  Union,  he  has  stated  in  detail  for  each  State  the 
law  upon  some  of  the  more  important  divisions  of  the 
subject,  in  which  there  is  a  want  of  harmony.  In  this 
way,  at  the  same  time,  a  fuller  presentation  of  the  law 

V 


PREFACE. 

and  of  the  authorities  upon  these  topics  has  been  made 
than  would  otherwise  have  been  practicable. 

The  author,  while  endeavoring  to  state  the  law  with 
clearness  and  precision,  has,  at  the  same  time,  endeavored 
to  avoid  making  the  work  an  unreadable  digest  of  decided 
cases ;  and  having  this  in  view,  he  has  sought  frequently 
to  illustrate  abstract  statements  of  the  law  by  giving  the 
facts  of  cases  cited,  and  by  making  quotations  from  the 
more  important  decisions ;  and  knowing  that  such  quota- 
tions are  much  more  valuable  when  given  ipsissimis  verbis, 
he  has  when  consistent  with  brevity  so  made  them,  and 
added  the  name  of  the  justice  rendering  the  decision. 

It  may  be  questioned  whether  the  author  has  not  cited 
more  cases  than  there  is  need  of,  especially  in  support  of 
propositions  upon  which  there  is  a  general  accord  of  opin- 
ion.-*^  It  was  deemed  better,  however,  to  err  in  citing  too 
many,  rather  than  too  few  cases  ;  and  in  view  of  the  pur- 
pose of  the  author  to  make  the  book  equally  applicable 

1  The  work  contains  upwards  of  four-  century  ago,  containing  the  English  learn- 
teen  thousand  citations  of  about  eight  ing  upon  the  subject  brought  down  to 
thousand  different  cases.  As  showing  the  that  time  by  Mr.  Coventry,  and  the  Amer- 
growth  of  the  subject  it  may  be  mentioned  ican  learning  added  by  Mr.  Eand,  Chan- 
that  previous  general  works  upon  Mort-  cellor  Kent  in  his  Commentaries  (vol.  4, 
gages,  embracing  the  law  of  the  subject  as  p.  180,  note)  says:  "There  never  were 
applied  both  to  Real  and  Personal  Proper-  two  editors  who  have  been  more  searching 
ty,  contain  each  about  six  thousand  cases ;  and  complete,  and  gigantic  in  their  labors, 
and  upon  that  part  of  the  subject  treated  The  work  has  become  a  mere  appendage 
of  in  the  present  work,  probably  only  about  to  the  notes,  and  the  large  collections  of 
four  thousand  cases.  This  increase  of  the  the  American  editor,  piled  upon  the  vast- 
number  of  adjudications  upon  the  subject  ly  more  voluminous  commentaries  of  the 
is  made  up  almost  wholly  from  the  deci-  English  editor,  have  unitedly  overwhelmed 
sions  of  the  American  Courts,  within  a  the  text."  He  quotes  in  illustration : — 
comparatively  short  period.  The  subject  Conati  imponere  Pelio  Ossam  — 
of  Power  of  Sale  Mortgages  and  Trust  — atque  Osseb  frondosum  involvere  Olj-mpum. 
Deeds  alone,  which  is  altogether  of  recent  Yet  such  have  been  the  changes  and  re- 
growth,  gives  occasion  for  about  a  thou-  statements  of  the  law  of  this  subject,  that 
sand  citations.  of  r^\\  tj^jg  accumulation  of  authorities  the 

Of  the  American   edition  of  the  Trea-  author  has  found  occasion  to  use  only  com- 

tise  of  Mr.  Powell,  published  just  half  a  paratively  few. 

vi 


PREFACE. 

to  every  part  of  the  United  States,  the  multipUcation  of 
authorities  from  different  States  was  deemed  to  be  de- 
sirable ;  while  in  general,  several  authorities  upon  the 
same  point,  whether  from  the  same  tribunal  or  not,  will 
illustrate  the  subject  in  different  ways.  Numerous  as  the 
citations  are,  many  cases  have  been  discarded,  especially 
such  early  ones  as  seem  to  have  been  superseded  by 
changes  in  the  law  or  by  later  and  more  important  de- 
cisions. It  may  be  that  important  cases  have,  through 
oversight,  been  omitted  ;  yet  much  care  has  been  used  to 
cite  all  recent  cases  of  importance  bearing  upon  the  topics 
treated  of  In  giving  the  names  of  Reports,  when  these 
are  designated  by  the  reporter's  name,  the  system  adopted 
in  Abbott's  United  States  Digest,  of  adding  the  name  of 
the  State,  has  been  followed,  except  in  cases  where  the 
context  shows  what  State  is  referred  to.  Reports  of  the 
Supreme  Court  of  the  United  States,  of  the  Circuit  and 
District  Courts  of  the  United  States,  and  the  English  Re- 
ports, are  cited  as  in  the  Digest  by  the  reporter's  name 
without  any  addition. 

Finally,  the  author  cannot  hope  to  have  attained  full 
accuracy  or  completeness  in  his  work.  For  such  errors 
as  there  may  be,  the  magnitude  of  the  subject  and  the 
difficulty  of  dealing  with  diverse  theories  of  the  nature  of 
a  mortgage  and  with  diverse  systems  of  Civil  Procedure, 
may  be  some  excuse.  It  will  be  esteemed  a  great  favor 
if  gentlemen  of  the  profession  will  communicate  with  the 
author  regarding  any  omissions  or  inaccuracies  they  may 

observe. 

LEONARD  A.   JONES. 
Boston,  February  7,  1878. 

yii 


TABLE  OF  CONTENTS  OF  VOLUME  L 


CHAPTER  I. 

THE   NATURE   OF   A   MORTGAGE. 

SECTION 

1.  History  of  the  Development  of  the  Law 1 

2.  The  Nature  of  a  Mortgage  in  the  different  States      .         .         .         .         17 

CHAPTER  n. 

FORM    AND   REQUISITES    OF    A   MORTGAGE. 

1.  The  Form  generally 60 

2.  The  Formal  Parts  of  the  Deed 63 

3.  The  Condition 69 

4.  Special  Stipulations 79 

5.  Execution  and  Delivery        .         .         .         .         .         .         .         •         .81 

6.  Filling  Blanks,  Making  Alterations,  and  Reforming  ....         90 

CHAPTER  HI. 

THE   PARTIES    TO    A    MORTGAGE. 
PART  I. 

Who  may  give  a  Mortgage      .  .        .         •         .         •         •         •         .102 

1.  Disability  of  In?anity    ....••••••  ^^^ 

2.  Disability  of  Infancy ^^"^ 

3.  Married  Women l^*^ 

4.  Tenants  in  Common  of  Partnership  Real  Estate        .     -    .         •         •       119 

5.  Corporations  .         .         .         .         .         •         .         •         •         •         •         .124 

6.  A  Power  to  Mortgage 129 

PART  II. 
Who  may  take  a  Mortgage 1^1 

CHAPTER  IV. 

« 

WUAT    MAY   BE    THE    SUBJECT    OF    A   MORTGAGE. 

1.  Existing  Interests  in  Real  Property 136 

2.  Accessions  to  the  Mortgaged  Property  . l-^^ 

ix 


TABLE   OF   CONTENTS. 
CHAPTER  V. 

EQUITABLE   MORTGAGES. 

SECTION 

1.  By  Agreements  and  Informal  Mortgages  ......       163 

2.  By  Assignments  of  Contracts  oC  Purchase    .         .         .         .         .         .172 

3.  By  Deposit  of  Title  Deeds 179 

CHAPTER   VI. 

LIENS   FOB   PURCHASE   MONEY. 

PART  I. 

The   Vendor's  Implied  Lien. 

1.  Nature  and  Extent  of  the  Lien 189 

2.  How  defeated  and  waived 198 

3.  Who  may  enforce  the  Lien 212 

4.  The  Remedy 218 

PART  II. 

The  Vendee's  Lien 223 

PART  III. 

The  Vendor's  Lien  by  Contract  or  Reservation. 

1.  Nature  and  Extent  of  such  Lien 225 

2.  Transfer  and  Enforcement  of  the  Lien 235 

CHAPTER   VII. 

ABSOLUTE    DEED    AND   AGREEMENT    TO   RECONVEY. 
PART  I. 

When  they  constitute  a  Mortgage 241 

PART  II. 
When  they  constitute  a  Conditional  Sale 256 

CHAPTER   VIIL 

PAROL    EVIDENCE    TO    PROVE    AN   ABSOLUTE    DEED    A    MORTGAGE. 

1.  The  Grounds  upon  which  it  is  admitted 282 

2.  What  Facts  are  considered 324 

CHAPTER  IX. 

THE    DEBT    SECURED. 

1.  Description  of  the  Debt 343 

2.  Future  Advances 364 

3.  Mortgage  of  Indemnity       .         .         .         .         .         .         .         .         .       379 

4.  Mortgages  for  Support 388 

X 


TABLE   OF   CONTENTS. 
CHAPTER  X. 

INSURANCE. 

SECTION 

1.  Insurable  Interests  of  Mortgagor  and  Mortgagee       ....       396 

2.  Insurance  by  the  Mortgagor  for  the  Benefit  of  the  Mortgagee        .         .  400 

3.  Insurance  by  the  Mortgagee 418 

4.  A  Mortgage  is  not  an  Alienation 422 

CHAPTER  XL 

FIXTURES. 

1.  Rules  for  determining  what  Fixtures  a  Mortgage  covers    .         .         .428 

2.  Machinery  in  Mills 444 

3.  Rolling  Stock  of  Railways 452 

4.  Remedies  for  Removal  of  Fixtures 453 

CHAPTER  XII. 

REGISTRATION   AS   AFFECTING   PRIORITY. 

1.  Nature  and  Application  of  Registry  Acts 456 

2.  Registry  Acts  of  the  Several  States 480 

3.  Requisites  as  to  Execution  and  Acknowledgment      .         .         .         .527 

4.  Requisites  as  to  the  Time  and  Manner  of  Recording     ....  542 

5.  Errors  in  the  Record 550 

6.  The  Effect  of  a  Record  duly  made 557 

CHAPTER  XIII. 

NOTICE   AS   AFFECTING   PRIORITY. 

1.  Notice  as  affecting  Priority  under  the  Registry  Acts         .         .         .570 

2.  Actual  Notice 578 

3.  Implied  Notice 584 

4.  Constructive  Notice 591 

5.  Lis  Pendens 599 

6.  How  far  Possession  is  Notice 600 

7.  Fraud  as  affecting  Priority 602 

8.  Negligence  as  affecting  Priority 604 

CHAPTER  XIV. 

VOID    AND    USURIOUS    MORTGAGES. 

PART  I. 
Void  Mortgages. 

1.  Want  or  Failure  of  Consideration 610 

2.  Illegal  Consideration 617 

3.  Mortgages  executed  on  Sunday 623 

4.  Fraudulent  Mortgages 624 

xi 


TABLE   OF   CONTENTS. 

PART  II. 

Usury. 

SECTION 

1.  What  Mortgages  are  Usurious 633 

2.  Compound  Interest •  650 

3.  Conflict  of  Laws 656 

CHAPTER  XV. 

A  mortgagor's  rights  and  liabilities. 

1.  As  to  Third  Persons 664 

2.  As  to  the  Mortgagee 667 

3.  His  Personal  Liability  to  the  Mortgagee 677 

4.  After-acquired  Titles  and  Improvements 679 

6.  Waste  by  Mortgagor 684 

CHAPTER  XVL 

A  mortgagee's  rights  and  liabilities. 

1.  The  Nature  of  his  Estate  or  Interest 699 

2.  His  Rights  against  the  Mortgagor 707 

3.  His  Liability  to  Third  Persons 722 

CHAPTER  XVIL 
A  purchaser's  rights  and  liabilities. 

1.  Purchase  Subject  to  a  Mortgage 735 

2.  Assumption  of  Mortgage  by  Purchaser 740 

3.  Personal  Liability  of  Purchaser 748 

CHAPTER  XVIII. 
A  lessee's  rights  and  liabilities     .         .         .       771 
CHAPTER  XIX. 

ASSIGNMENT    OF   MORTGAGES. 

1.  A  Formal  Assignment 786 

2.  Whether  an  Assignment  may  be  compelled 792 

3.  Who  may  make  an  Assignment  .......       794 

4.  What  constitutes  an  Assignment 804 

5.  Equitable  Assignments 813 

6.  Construction  and  Effect  of  Assignments 823 

7.  Whether  an  Assignee  takes  Subject  to  Equities         ....       834 

CHAPTER  XX. 

MERGER   AND   SUBROGATION. 
PART  I. 

Merger 848 

PART  II, 

Subrogation 874 

xii 


TABLE  OF  CONTENTS. 


TABLE   OF   CONTENTS   OF   VOLUME  IL 


CHAPTER  XXI. 

PAYMENT    AND    DISCHARGE. 

SECTION 

1.  Tender  before  and  after  Default .886 

2.  Appropriation  of  Payments 904 

3.  Presumption  and  Evidence  of  Payment 913 

4.  Payment  by  Accounting  as  Administrator 919 

5.  Changes  in  the  Form  of  the  Debt 924 

6.  Revivor  of  Mortgage 943 

7.  Foreclosure  does  not  constitute  Payment 950 

8.  Who  may  receive  Payment  and  make  Discharge        .         .         .         .956 

9.  Discharge  by  Mistake  or  Fraud     .         .         .         .         .         .         . '       .  966 

10.  Form  and  Construction  of  Discbarge 972 

11.  Entry  of  Satisfaction  of  Record 989 

12.  Statutory  Provisions  for  Entering  Satisfaction  of  Record         .         .       992 

CHAPTER  XXH. 

REDEMPTION   OF   A   MORTGAGE. 

1.  Redemption  a  Necessary  Incident  of  a  Mortgage         ....  1038 

2.  Circumstances  affecting  Redemption 1047 

3.  "When  Redemption  may  be  made 1052 

4.  Who  may  redeem 1055 

5.  The  Sum  payable  to  effect  Redemption 1070 

6.  Contribution  to  redeem 1089 

7.  Pleadings  and  Practice  on  Bills  to  redeem 1093 

CHAPTER  XXIII. 
mortgagee's  account. 

1.  Liability  to  Account 1114 

2.  "What  the  Mortgagee  is  chargeable  with 1121 

3.  Allowances  for  Repairs  and  Improvements 1126 

4.  Allowance  for  Compensation 1132 

5.  Allowances  for  Disbursements 1134 

6.  Annual  Rests 1139 

CHAPTER  XXIV. 

WHEN    THE    RIGHT    TO    REDEEM    IS   BARRED. 

1.  The  Statute  of  Limitations  applies  by  Analogy        .         .         .         .1144 

2.  When  the  Statute  begins  to  run 1152 

3.  What  prevents  the  Running  of  the  Statute 1162 

xiii 


TABLE   OF   CONTENTS. 
CHAPTER  XXV. 

SECTION 
WHEN   THE    RIGHT   TO    ENFORCE   A   MORTGAGE   ACCRUES  .1174 

CHAPTER  XXVI. 

WHEN   THE   RIGHT   TO    FORECLOSE   IS    BARRED     .  .         1192 

CHAPTER  XXVn. 

REMEDIES   FOR    ENFORCING    A   MORTGAGE. 

1.  Are  Concurrent •  1215 

2.  Personal  Remedy  before  Foreclosure 1220 

3.  Personal  Remedy  after  Foreclosure 1227 

4.  Sale  of  Mortgaged  Premises  on  Execution  for  Mortgage  Debt         .       1229 

5.  Remedy  as  affected  by  Bankruptcy 1231 

CHAPTER  XXVIH. 

FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

1.  Nature  of  the  Remedy 1237 

2.  Statutory  Provisions     .         .     " 1239 

3.  The  Entry 1246 

4.  The  Possession 1258 

5.  The  Certificate  of  Witnesses 1259 

6.  The  Certificate  of  the  Mortgagor 1261 

7.  When  the  Limitation  Commences 1262 

8.  Record  of  the  Certificate 1263 

9.  Effect  of  the  Foreclosure  upon  the  Mortgage  Debt         .         .         .       1264 
10.  Waiver  of  Entry  and  Foreclosure 1265 

CHAPTER  XXIX. 

FORECLOSURE  BY  WRIT  OF  ENTRY. 

1.  Nature  of  and  where  used 1276 

2.  Who  may  maintain 1280 

3.  Against  whom  the  Action  may  be  brought 1290 

4.  The  Pleadings  and  Evidence .1292 

5.  The  Defences 1296 

6.  The  Conditional  Judgment 1306 

CHAPTER  XXX, 

STATUTORY   PROVISIONS   RELATING  TO  FORECLOSURE  AND   REDEMP- 
TION     1317 

CHAPTER  XXXI. 

THE   PARTIES    TO    AN    EQUITABLE    SUIT   FOR   FORECLOSURE  .  .    1367 

PART  I. 

Of  Parties  Plaintiff 1368 

PART  II. 

Of  Parlies  Defendant 1394 

xiv 


TABLE   OF   CONTENTS. 
CHAPTER  XXXII. 

FORECLOSURE    BY    EQUITABLE    SUIT. 

SECTION 

1.  Jurisdiction,  and  the  Object  of  the  Suit 1443 

2.  The  Bill  or  Complaint 1451 

3.  The  Answer  and  Defence 1479 

CHAPTER  XXXIII. 

THE  APPOINTMENT  OF  A  RECEIVER. 

1.  When  a  Receiver  will  be  appointed 1516 

2.  Duties  and  Powers  of  a  Receiver    .......       1535 

CHAPTER  XXXIV. 

DECREE   OF    STRICT   FORECLOSURE. 

1.  Nature  and  Use  of  this  Remedy 1538 

2.  In  what  States  it  is  used 1542 

3.  Pleadings  and  Practice 155 7 

4.  Setting  aside  and  opening  the  Foreclosure       .....  1569 

CHAPTER  XXXV. 

DECREE    OF    SALE. 

1.  A  Substitute  for  Foreclosure 1571 

2.  The  Form  and  Requisites  of  the  Decree 1574 

3.  The  Conclusiveness  of  the  Decree 1587 

4.  The  Amount  of  the  Decree 1590 

5.  Costs 1602 

CHAPTER  XXXVI. 

FORECLOSURE    SALES   UNDER  DECREE   OF   COURT. 

1.  Mode  and  Terms  of  Sale 1608 

2.  Sale  in  Parcels 1616 

3.  Order  of  Sale 1620 

4.  Conduct  of  Sale 1633 

5.  Confirmation ■  of  Sale 1637 

6.  Enforcement  of  Sale  against  the  Purchaser 1642 

7.  The  Deed,  and  Passing  of  Title 1652 

8.  The  Delivery  of  Possession  to  Purchaser    ......  1663 

9.  Setting  aside  of  Sale 1668 

CHAPTER   XXXVII. 

APPLICATION   OF   PROCEEDS    OF   SALE. 

1.  Payment  of  the  Mortgage  Debt 1682 

2.  Disposition  of  the  Surplus 1684 

3.  Priorities,  between  Holders  of  several  Notes  secured  ....  1699 

4.  Costs  of  Subsequent  Mortgagees 1  "08 

XV 


TABLE   OF   CONTENTS. 
CHAPTER  XXXVIII. 

SECTION 

JUDGMENT    IN  AN   EQUITABLE  SUIT    FOR  A  DEFICIENCY   .           .  1709 

CHAPTER  XXXIX. 

STATUTORY   PROVISIONS    RELATING    TO    POWER   OF    SALE    MORTGAGES  AND 

TRUST    DEEDS. 

1.  Introductory 1722 

2.  Statutory  Provisions  in  the  Several  States 1723 

CHAPTER  XL. 

POWER   OF    SALE  MORTGAGES  AND  TRUST   DEEDS. 

1.  The  Nature  and  Use  of  Powers  of  Sale 1764 

2.  The  Power  of  Sale  is  a  Cumulative  Remedy       .         .         .         .         .1773 

3.  Construction  of  Power 1777 

4.  Revocation  or  Suspension  of  the  Power 1792 

5.  When  the  Exercise  of  the  Power  may  be  enjoined          .         .         .  1801 

6.  Personal  Notice  of  Sale 1821 

7.  Publication  of  Notice 1827 

8.  What  the  Notice  should  contain 1839 

9.  Sale  in  Parcels 1857 

10.  Conduct  of  Sale,  Terms,  and  Adjournment 1861 

11.  Who  may  purchase  at  Sale  under  Power         .         ,        .         .         .  1876 

12.  The  Deed  and  Title 1889 

13.  The  Affidavit 1904 

14.  Setting  Aside  and  Waiving  Sale 1906 

15.  Costs  and  Expenses 1923 

16.  Tlie  Surplus 1927 

xvi 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Abadie  v.  Lobero 
Abbe  i\  Goodwin 

V.  Newton 
Abbott  V.  Allen, 
V.  Banfield 
V.  Godfroy 


1055,  1411 

888,  1052 

629 

1492,  1502 

1088,  1243 

168,  556,  1414 


V.  Hampden  Mut.  Fire  Ins. 


Co 
V.  Hanson 
V.  Kasson 
V.  Upton 

Abel  V.  Heathcote 

Abell  V.  Coons 

V.  Screech 

Abrahams  v.  Claussen 

Ackens  v.  Winston 

Ackerman  v.  Lyman 

Ackla  V.  Ackla 

Ackland  v.  Gravener 

Adair  v.  Adair 
V.  AVright 

Adams'  appeal 

Adams  v.  Barry 
V.  Brown 
V.  Buchanan 
V.  Corriston 
V.  Cowherd 
V.  Essex 
r.  Gay 
V.  Haskell 
V.  Hill 
V.  Horton 
V.  Johnson 
V.  McKenzie 
V.  Parker 
V.  Paynter 
V.  Pratt 
V.  Robertson 
V.  Scott 
V.  Stevens 

Adkins  v.  Lewis 


426 

339 

869 

802,  934 

1648 

768 

1685 

647 

74 

1124 

974 

1519 

788 

1531,  1532 

515 

1173 

1076,  1077,  1133 

199,  201,  207 

37,  684,  689 

212,  232,  235 

1181, 1577 

623 

1640,  1675 

466 

151 

85,  163 

1105 

787 

1436 

543 

1493 

1797,  1857 

69,  242 

341,  1129 


^tna  Fire  Ins.  Co.  v.  Tyler    419,  420 


1173 


Ahern  v.  White  376,  465 

Ahrend  y.  Odiorne  190,  191 

Aiken  i;.  Bruen  1621 

V.  Gale    1090,  1242,  1283,  1285, 

1349 

V.  Milwaukee  &  St.  Paul  R. 

Co.  855,  872,  1621 

Aikin  v.  Morris  1492,  1506 

Akerly  v.  Vilas  84,  1490 

Alabama  Life  Ins.  &  Trust  Co.  v. 

Pettway  1322,  1443 

Albany  City  Bank  v.    Schermer- 

horn 
Albert   v.    Grosvenor 
Co. 


Albright  v.  Cobb 
Alden  v.  Garver 
V.  W^ilkins 
Alderson  v.  Ames 
V.  Bell 
V.  White 
Aldrich  v.  Cooper 
V.  Lapham 
V.  Martin 
I'.  Reynolds 
V.  Sharp 
V.  Stephens 
Aldridge  v.  Dunn 
Alexander  v.  Brown 
V.  Frary 
V.  Greenwood 
V.  Rea 
Alexandrie  v.  Saloy 
Algur  V.  Gardner 
Alkinson  v.  Stewart 
Aliard  v.  Lane 
Alleghany  R.  &  Coal  Co.  r.  Casev,  271 

326 
Allen  y.  Bennett  192 

V.  Chatfield  1882 

V.  Clark  1090,  1621 

V.  Cole  1874 

V.  First  Nat.  Bk.  of  Xenia    134 


1535 
Investment 

1179,  1190 

809 

172 

1905 

173,  465 

1673 

264,  1153 

1628 

1473 

387 

697,  1820 

1663 

1412 

198,  201,  217 

1088 

1419  1718, 

1646 

98, 1464 

359 

642 

866 

972 


TABLE    OF   CASES. 


Allen  V.  Everly 
V.  Hawley 
V.  Kemp 
V.  Lathrop 
V.  Loring 
V.  Malcolm 
V.  McRae 
V.  Pancoast 
V.  Parker 
V.  Ranson 
V.  Robbins 
V.  Shackelton 
V.  Smitli 
Allen,  ex  parte 
Allenby  v.  Dalton 
Allerton  v.  Belden 
Allis  V.  Sabin 
AIsop  V.  Hall 
Alston  V.  Alston 
Alvis  V.  Morrison 
Alwood  V.  Mansfield 
American  Ins.  Co.  v.  Oakley         1668, 
1670,  1672,  1858 
American    Life    &    Fire   Ins.    & 

Trust  Co.  V.  Ryerson  1350,  1616 

American   Mut.    Life   Ins.   Co.  v. 

Owen  1295 

Ames  V.  Mannering  1198 

V.  N.  O.,  Mobile  &  Tex.  R. 

Co.  924 

V.  Phelps  543 

V.  Trustees   of    Birkenhead 

Docks  1535 

Amidown  v.  Peck         1276,  1285,  1294 

Amonett  w.  Amis  149,  153 

Amory  v.  Fairbanks  950,  952 

V.  Reilly  225 

Amphlett  v.  Hibbard  466,  1423 

Anderson  v.  Austin    1351,  1618,  1751, 

1858 
V.  Baughman  97,  529 

V.  Baxter  1210,  1482 

V.  Davies  356 

V.  Foulke  1643 

V.  Kemshead  1519 

V.  Lauterman  1118 

Anding  v.    Davis  303,    324,    330, 

1152 
Andrews  v.  Burns  481 

V.  Fiske  1229,  1929 

V.  Gillespie  1483,  1426, 1464, 
1513 
V.  Hart  134,  814,  817 

V.  Hooper  1295 

V.  Jones  1181 

V.  M'Daniel  1372 

V,  Monilaws  111 

xviii 


Reference  is  to  Sections. 

46 

466 

337 

366 

201 

1450 

1060 

813 

702,  1719 

719,  1876 

901,  1923 

1492,  1506 

894 

1686 

284 

1095 

1641, 1670 

4 

559 

533,  559 

293 


ndrews  v.  Poe 

639 

V.  Pond 

657 

V.  Powers 

813 

V.  Scotton 

198,  1340 

V.  Stelle 

1404 

V.  Thayer 

87,  616 

V.  Torrev  660,  663,  842 

V.  Wolco'tt  740 

Angel  V.  Bouner  848 

Aiigier  v.  Masterson  3,  1513 

Anketel  v.  Converse  191,  207,  587 

Annapolis,  &c.  R.  Co.  r.  Gantt  34 

Anson  v.  Anson  1095,  1395,  1425 

Anthony  v.  Anthony         250,  287,  324, 

1083 
V.  Nye  1420 

V.  Rogers  1114 

App  V.  Bridge  1336 

Apperson  v.  Moore  151 

Applegate  v.  Mason  936,  937 

Appleton  V.  Boyd  135,  704 

Archambau  v.  Green        244,  975,  1193 
Archbold  v.  Scully  1155 

Arlin  v.  Brown  191,   194 

Armitage  v.  Wickliffe  983 

Arms  V.  Stockton  1335 

Armstrong  v.  Humphreys    1357,  1662, 

1663 

V.  Peirse  973 

V.  Pratt  1396 

V.  Ross  533,  1476 

V.  Sanford  1808,  1815 

Arnold  v.  Foot  1080 

V.  Mattison  283,  314,  335, 

336 

V.  Patrick  200 

V.  Stanfield  1469 

Arnot  V.  McClure        1751,  1894,  1904, 

1905 

V.  Post  889,  893,  1425 

Arques  v.  Wasson  149 

Arrington  v.  Liscom  1146 

Artz  V.  Grove  279,  299 

Ash  V.  Ash  544 

Ashe  V.  Livingstone  644 

Ashhurst  v.  Montour  Iron  Co.         1355 

Ashmole  r.  Wainwright  894 

Ashton  V.  Milne  1154 

Ashuelot  R.  Co.  v.  Elliot      1243,  1320 

Astbury,  ex  parte  437,  451 

Astley  V.  Milles  861 

Astor  V.  Hoyt  44,  708,  785 

r.  Miller  708,  785,  1935 

V.  Romayne  1634 

y.  Turner  669,  1516,  1518,  1526, 

1532,  1536,  1659 

V.  Wells  573,  588 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Atchison  v.  Surguine  1388 

Atlierton  o.  Toney  736 

Athol  Machine  Co.  v.  Fuller  110 

Athol  Savings  Bank  v,  Pomroy       384, 

1312 

Atkins  V.  Faulkner  295 

V.   Sawyer    1050,  1056,  1069, 

1229 

Atkinson  v.  Angert  866 

V.  Duffy  1834 

V.  Lindsey  211 

V.  Marietta,  &c.  R.  Co.      124 

V.  Morrissy  804 

V.  Patterson  1194 

i\  Richardson  1642 

Atlantic  Dock  Co.  v.  Leavitt  741, 

752 
Atterbury  v.  Wallace  589 

Attorney  Gen.  i\  Day  1613 

V.  Wiikins  583 

Attwood  V.  Small  1398 

Atwater  v.  Kinman      1773,  1851,  1920 
V.  Seymour  1467 

V.  Walker  1493 

Atwood  V.  Fisk  610,  618,  619,  620 

V.  Vincent  191 

Aubuchon  v.  Bender  458 

Augur  u.  AVinsIow  901,1069 

Augusta  Bank  v.  Hamblet  127 

Aull  V.  Lee  350,  352 

Aurora  Ag.  &  Hort.  Soc.  v.  Pad- 
dock 124,  127 
Austen  v.  Dodwell                   901,  1088 
V.  Halsey  210 
Austin  V.  Austin               388,  918,  1058 
V.  Bradley  712 
V.  Burbaiik         813,  1377,  1471 
V.  Chittenden                          1493 
V.  Downer  242 
V.  Grant                                  1490 
V.  Shaw                              795,  799 
lu  Underwood                           466 
Australian,  &c.  Co.  v.  Mounsey        129 
Autrey  v.  Whitmore  204 
Averett  v.  Ward                                1414 
Averill  r.  Guthrie  569 
V.  Loucks                      122,  1688 
V.  Taylor         1055,  1066,  1068, 
1086,  1380,  1786 
V.  Wade                     1621,  1628 
Avery  v.  Judd                              57,  680 
Ayers  v.  Harness  90 
Aymar  v.  Bill                               804,  808 
Aynsley  v.  Reed                                1065 
Ayrault  v.  Murphy                              599 
Ayres  v.  Ilusted                                   114 
V.  Probasco                           90,  93 


Ayres  v.  Waite 


1144,  1192,  1198, 
1244,  1257, 1262 
V.  Watson  355,  934 

B. 


Babbitt  v.  Bowen 

1457 

Babcock  v.  Bridge 

372 

V.  Jordan 

458 

V.  Lisk 

352,  596 

V.  Morse 

382,  924 

V.  Perry 

1618 

Bachdell's  app. 

1493 

Bache  v.  Doscher 

1709 

Bacon  v.  Bacon 

594 

V.  Bowdoin 

1066 

V.  Brown         70,  272, 

279,  289, 

367 

V.  Cottrell  360,  1128 

17.  M'Intire  1195,  1198 

Badger  v.  Phinney  104 

Bailey  v.  JEtna.  Ins.  Co.  1871 

V.  Carter  1144,  1152 

V.  Gould  603,  804 

V.  Lincoln  Academy  682 

V.  Merritt  1855,  1939 

V.  Metcalf    893,  894,  902,  1298 

V.  Myrick    589,  873,  1090,  1121 

V.  Richardson  857 

V.  Smith  838,  1487 

V.  Smock  235 

V.  Willard  848 

Bainbrigge  v.  Blair  1537 

Baird  v.  McConkey      1709    1710,  1720 

Baisch  v.  Oakeley  248,  312,  326 

Baker  v.  Bank  of  La.  65 

V.  Beach  1541 

V.  Bishop  173 

V.  Bishop  Hill  Colony  136 

V.  Clepper  465 

V.  Collins  617 

V.  Lehman  1181 

V.  Pierson  1075 

V.  Scott  1421 

V.  Shephard  1381 

V.  Terrell  768,  793,  881 

V.  Thrasher  270 

V.  Wetton  1166,  1173 

V.  Wind  243 

Baldridge  y.  Walton  1777 

Baldwin  v.  Cawthorne  283 

V.  Jenkins  60,  242 

V.  Norton  848,  983,  1204, 

1493 

t".  Timmins  797 

r.  Van  Vorst  1179 

Balfe  V.  Lord  1153 

xix 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Ball  V.  Lord  Riversdale  1165 

V.  Wyeth  1204,  1220 

Ballard  v.  Jones  315,  1060 

Ballenger  V.  Oswalt  1188 

Ballin  ('.  Dillaye  109.  116,  753 

Ballinger  v.  Waller  1663 

Balme  v.  Wombough  660 

Bancker  v.  Hitchcock  1527 

Bancroft  v.  Asbhurst  1897 

Banfield  v.  Whipple  627 

Bange  v.  Flint  814 

Bank  v.  Carpenter  163 

.  Willard  366,  929 

Bank,  &c.  v.  Rose,  924 

Banker  v.  Brent  1809 

Bank  of  Albion  v.  Burns         114,  115, 

942 
Bank  of  Auburn  v.  Roberts  708 

Bank  of  Commerce  appeal  383 

Bank  of  Commerce  v.  Lanahan      1769 
Bank  of  England  v.  Tarleton  822, 

823,  929,  1701 
Bank  of  Greensboro'  v.  Clapp  469 
Bank  of  Indiana  u.  Anderson  472, 

817,  820,  987 
Bank  of  Lansingburgh  v.  Crary  434 
Bank  of  Middlebury  v.  Rutland, 

&c.  R.  Co.  127 

Bank    of    Montgomery    County's 

App.  372,  383 

Bank  of  Muskingum  v.  Carpenter 

556,  611 
Bank  of  Niagara  v.  Rosevelt  1069 

Bank  of   North  America  v.  Nor- 
wich Savings  Society  1570 
Bank  of  Ogdensburg  v.  Arnold       772, 
nSl,  1516,  1521,  1530,  1618 
Bank  of  Orleans  v.  Flagg  600 
Bank  of  Rochester  v.  Emerson       1709 
Bank  of  S.  C.  v.  Rose              355,  1083 
Bank  of  Utica  v.  Finch           374,  377, 
846,  924,  942 
Bank  of  the  U.  S.  v.  Covert           1700, 
1701,  1702 
Bank  of  U.  S.  v.  Davis  584 
I'.  Voorhes                 1662 
Bank  of  Westminster  v.  Whyte        299 
Bank  of  Wisconsin  v.  Abbott          1679 
Banks  v.  McClellan         636,  644,  652, 

1493 

V.  Walker  1490,  1502 

Banning  v.  Armstrong  1851 

V.  Bradford  1439,  1440 

V.  Edes  465,  466 

Banta  v.  Garmo  971,  605 

U.Maxwell  1911 

V.  Vreeland  969 

XX 


Banta  r.  Wood  1215,  1218 

Barber  17.  Gary  1689,  1860,  1935,  1937 


Barbour  v.  Nichols 

557 

Barclay  v.  Blodget 

817 

Barelli  v.  Delassus 

497 

Bard  v.  Fort 

1493 

V.  Poole 

1426 

t\  Steele 

1576,  1618 

Bardstown  &  R.  R.  Co.  v. 

Met- 

calfe 

1383,  1385 

Bardwell  v.  Howe 

634 

Baring  v.  Moore 

743,  1635 

Barkelew  v.  Taylor 

332,  341 

Barker  v.  Bell 

18,  463,  1229 

r.  Flood 

849 

V.  International  Bank           655 

V.  Smark 

218 

Barlow  v.  Gains 

1531 

Barman  v.  Carhartt 

1895 

Barnard  ik  Bruce 

1600,  1604 

V.  Duncan 

1873,  1889 

V.  Eat^n 

11,  150 

V.  Harrison 

991 

V.  Jennison 

1117,  1128 

V.  Norwich  &  Worcester 

R.  Co. 

152 

V.  Young 

650 

Barnes  v.  Brown 

870,  1229 

V.  Camack 

966,  989 

V.  Mott 

876 

V.  Racster 

1621 

r.  Stoughton 

1610 

Barney  v.  Little 

555 

V.  Myers 

722,  1626 

Barnhart  v.  Greenshields 

580 

Barns  v.  Lee 

1563 

Barr  v.  Kinard 

593 

Barraque  r.  Manuel 

1371 

Barrel!  v.  Sabine 

262 

Barrett  v.  Hartley 

1044 

V.  Mitchell 

1518,  1526 

Barroilhet  v.  Battelle 

166,  171 

Barron  v.  Martin        1144 

1157,  1163, 

1166,  1171 

V.  Paulling 

1123 

Barrows  v.  Baughman 

528 

Bartholomew  v.  Hamilton 

438 

Bartle  v.  Wilkin 

1602 

Bartlett  v.  Bartlett 

110,  114 

V,  Boyd 

1393 

V.  Drake 

81 

t'.  Fellows 

1104 

I'.  Franklin 

890,  1071 

V.  Gale 

708,  1935 

Bartlett  v.  Johnson 

1260 

V.  McNeil 

1223 

V.  Tarbell 

889 

TABLE   OF   CASES. 


Reference  is  to  Sections. 


Bartlett  v.  Wood  442 

Barton  v.  May  241,  1095,  109G,  1111 
Bartow  v.  Cleveland  1111,  1450,  16o3 
Basconi  v.  Smith  848 

Baskins  v.  Calhoun  644 

Basse  v.  Gallegger  1182 

Bassett  v.  Bassett  71,  307 

V.  Hathaway  859,  564 

V.  Mason   848,  950,  1228,  1567 


V.  McDonel 
Batchelder  v.  Robinson 

f.  Taylor 
Batchelor  v.  Middleton 


565, 1467 
1269 
1511 
1164,  1168, 
1173,  1418 
Bates  V.  Boston  &  N.  Y.  Cent.  R. 

Co.  128 

V.  Cos  22,  135 

V.  Com.  Ins.  Co.  426 

V.  Conrow         1144,  1194 

V.  Perry  1862 

V.  Reynolds  1444 

V.  Ruddic-k        1047,  1090,  1425, 

1626 

497 

124,  154 

1496 

1666 

219 

251,  1045 

250,  251,  267, 

279,  299 

198,  204,  207,  212 

244,  250,  253,  500, 

1039 

985 

V.  Greenleaf  191,  193,  199,  201 

Baynard  v.  WooUey  181,  183 

Baxter  v.  Child  1039 

V.  Dear  244 

V.  Mclntire  326,  351,  352,  924, 

1195 

V.  Smack  1432 

V.  Willey  317 

Beach  v.  Clark  22 

V.  Cooke    674,  989,  1052,  1093, 

1096,  1105,  1108,  1566 

V.  Royce  703 

V.  Shaw  1064 

Beall  V.  Barclay  1090 

Beals  17.  Clark  629 

V.  Cobb  1100 

Bean  v.  Atlantic  &  St.  Lawrence 

R.  Co.  421 

V.  Boothby  850,  856 

1-.  Brackett  1111 

V.  Mayo  1289 

V.  Whitcomb  1556,  1567 


Batey  v.  Woolfolk 
Bath  V.  Miller 
Bathgate  r.  Haskin 
Battershall  v.  Davis 
Battorf  V.  Conner 
Batty  V.  Snook 
Bau";her  v.  Merrvman 


Baum  V.  Grigsby 
Bayley  v.  Bailey 

Baylies  v.  Bussey 


Bearce  v.  Barstow  745 

Beard  v.  Fitzgerald      1092,  1621,  1935 
Beardsley  v.  Ontario  Bank  452 

V.  Tuttle  947 

Beatie  v.  Butler         1775,  1792,  1854, 

1899 
Beauchamp  v.  Leagan  1577 

Beavin  v.  Gove  1273,  1287 

Bebee  v.  Bank  of  New  York  843 

Beckel  v.  Petticrew  534 

Becket  v.  Cordley  581 

Beckford  v.  Wade  1144,  1203 

Becknell  v.  Byrnes  1613 

Beckwith  v.  VVindsor  Manuf.  Co. 

1187,  1471 
Bedell  v.  McClellan  1802,  1804 

Beebe  v.  Austin  466 

Beecher  v.  Ackerman  989 

V.  Stevens  120 

Beeker  v.  Graham  1938 

Beekman   F.   Ins.  Co.  v.  Fh-st  M. 

E.  Church  357,  1690 

Beekman  v.  Frost  364,  1095 

V.  Gibbs  1610,  1616 

Beers  v.  Broome  608 

i;.  Hawley  608,  1469 

Beevor  v.  Luck  1083 

Began  v.  O'Reilly  65 

Begbie  v.  Fenwick  435 

Belch  V.  Harvey  1144 

Belcher,  ex  parte  436 

Belden  v.  Meeker  472,  473 

Belding  v.  Manly  821,  822 

Belknap  v.  Gleasoa  1204 

Bell  V.  Banks  862 

V.  Birdsall  1664 

V.  Carter  281 

V.  Day  642 

V.  Evans  462 

V.  Farmers'  Bank  of  Kentucky,  84, 

86 

V.  Fleming  352,  364,  368 

V.  Hammond  726 

V.  Lent  634 

V.  Mayor  of  New  York    44,  1116, 

1127,  1420,  1421,  1693 

V.  Morse  804,  808 

V.  Shrock  13  78,  1427 

V.  Thomas  572 

V.  Twilight  582,  600,  1792 

V.Woodward  848,913 

Bellamy  v.  Brickenden    409,  420,  1135 

V.  Cockle  1572 

V.  Sabine  599 

Belloc  V.  Rogers      1404,   1414,    1573, 

1653 
Bellows  V.  Stone  1104 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Belmont  Co.  Branch  Bank  v.  Price 

1184 
Belmont  v.  Coman  741,  748,  1712, 

1713 

V.  O'Brien  915 

Belote  V.  Morrison  277,  282,  302 

Belton  V.  Avery  289,  1060 

Bement  v.  Plattsburgh  &  Montreal 

R.  Co.  452 

Bemis  v.  Call  850,  864,  922 

Bend  v.  Susquehana  Bridge  Co.      299 

Benedict  v.  Oilman    1069,  1075,  1084, 

nil,  1127,  1128,  1395, 

1540,  1551,  1558,  1568, 

1602,  1603 

V.  Hunt  754 

V.  Warriner  1599 

Benham  v.  Keane  571 

V.  Rowe  1132,  1876,  1886 

Benhard  v.  Darrow  1663 

Benjamin  v.  Cavarac  1338,  1443 

V.  Elmira,  &c.   R.   Co.    152, 

156,  452 

v.  Loughborough  1797 

Benkendorf  v.  Vincenz         1835,  1859 

Bennett  v.  Calhoun  Asso.       729,  1411 

V.  Conant       1254,  1358,  1261 

V.  Cook  1139 

V.  Healey  1855 

V.  Matson  1661,  1666 

V.  Solomon  817 

V.  Stevenson       76,  1184,  1185 

V.  Taylor  1469,  1487 

V.  Union  Bank  250,  1769 

Bennett,  ex  parte  1878 

Bennock  v.  Whipple  245 

Benson   v.   Stewart    1194,   1208,  1210 

Bentley,  ex  parte  439 

Bentley  v.  Bates  1063 

V.  Phelps  285,  335 

V.  Vanderheyden  983 

V.  Whittemore  969 

Benton  v.  Jones  282,  289 

V.  Shreeve  1670 

V.  Wood  1334,  1618 

Berberick  v.  Fritz  295 

Bercaw  V.  Cockerill  513,  542,  573, 

595 
Berdan  v.  Sedgwick  644 

Beresford  v.  Ward  704 

Bergen  v.  Bennett      1054,  1767,  1787, 
1792,    1881,  1882 
Berger  v.  Hiester  953 

Bernard  v.  Norton  898 

Bernays  v.  Field  215 

Berney  v.  Sewell         1519,  1523,  1525 
Berrisford  v.  Milward  602 

xxii 


Berry  v.  Mutual  Ins.  Co.         457,  471, 

607 
V.  Skinner         1786,  1792,  1793 
Berthold  v.  Fox  37 

V.  Holman  37,  690 

Besser  v.  Hawthorne        47,  873,  1396 
Best  V.  Schermier  1520 

Bethlehem  v.  Annis      346,   388,    392, 

395 

Betts  f.  Birdsall  1664 

Betz  V.  Heebner  822,  1701 

Beverly  v.  Brooke  582,  1524 

Bevier  I'.  Sohoonmaker         1751,  1939 

Beville  v.  Mcintosh  1344,  1467 

Bibb  V.  Baker  556 

Biokell  V.  Byrnes  1600,  1633 

Bickford  v.  Daniels  241 

Biddulph  V.  St.  John  901,  1088 

Bidwell  y.  Whitney  1809 

Bigelow  V.  Bush  1401,  1414,  1709 

V.  Kinney  104 

r.  Topliff  317,326 

V.  Wilson  1056,  1064 

Biggens  v.  Bird  292 

Biggerstaff  v.  Loveland  1352 

Biggins  i\  Brockman  954 

Bigiery.  Waller  1836,  1902,  1907 

Billingsley  v.  Dean  635 

Billington  v.  Forbes  1676 

r.  Wagoner  *       649 

Bingham  v.  Thompson      250,  306,  335 

Binsse  v.  Paige  735,  748 

Birch  V.  Wright  776 

Bird  i;.  Davis  1483,  1498 

V.  Decker  664 

V.  Gill  1313 

V.  Wilkinson  318 

Birdsall  v.  Patterson  639 

Birnie  v.  Main        464,  562,  982,  1204, 

1206,  1624,  1631 

Birrell  v.  Schie  926 

Bisco  17.  Earl  of  Banbury  591,  595 

Bisdee,  ex  parte  181 

Bishop  V.  Bishop  286,  429 

V.  Douglass  751,  1406 

V.  Felch  1485 

V.  Ogden  793 

V.  Schneider  458,  542,  553,  554 

V.  Snell  207 

V.  Petty  1359 

V.  Williams  261,  279 

Bishop  of  Winchester  v.  Beavor    1395 

V.  Paine      1108, 

1411 

Bissell  V.  Bozman  1569 

V.  KelloQ-g  646 


V.  Marine  Co. 


1414 


TABLE   OF    CASES. 


Reference  is  to  Sections. 


Black  V.  Carroll 
V.  Gahvay 
f .  Gresg 
IK  Smith 
Blackburn  v.  Gregson 
I'.  Tweedie 
V.  Warwick 
Blackemore  v.  Taber 
Blackledge  v.  Nelson 
Blackwell  v.  Cumniings 

V.  Overby 
Blackwood  v.  Van  Vleet 
Blades  v.  Blades 
Blagrave  v.  Clunn 
Blair  v.  Bass 

V.  Chamblin 
V.  jVIarsh 


1740 

1355 

1()8 

901, 1088 

189,  190 

167 

650 

65 

1467,  1620 

625 

310,  324 

702 

570 

143G 

294,  817 

1060 

1335,  1449 


r.  Shelby  Co.  Agr.  Soc.         1385 

V.  Ward        562,  722,  1624,  1631 

Blair,  ex  parte  796,  79  7 

Blaisdell  v.  Stevens  580 

Blake  v.  Foster  1144 

V.  Sanborn  135,  1283,  1382 

V.  Williams  817 

Blakeley  v.  Calder  1662 

Blakemore  v.  Byrnside  269,  287 

Blanchardi).  Brooks  664,  702 

V.  Colburn  701 

V.  Kenton  297,  6  72 

V.  Kimball  1307 

Blancke  v.  Rogers  447 

Blanco  v.  Poote  1551,  1565 

Blaney  v.  Bearce  33,  244 

Blanton  v.  Knight  220 

Bledsoe  v.  Rader  1513 

Blethen  v.  Dwinal         915,  1144,  1158 

Blight  V.  Banks  1620 

Blim  V.  Wilson  895 

Bliss  V.  Weil  1228 

Blockiey  v.  Fowler  1877,  1886 

Blodgett  V.  Hildreth  705 

V.  Hobart  97,  15G9 

V.  Wadhams  889 

Blood  V.  Blood  533 

Bloodgood  V.  Zeigly  258 

Bloom  V.  Noggle        81,  542,  556,  573, 

1882 

V.  Van  Rensselaer  1733 

Bloomer  t'.  Henderson  834,  1487 

V.  Sturges      1396,  1426,  1588 

V.  Waldron  129 

Blossom  V.  Railroad  Co.      1608,  1633, 

1634, 1638 

Blount  V.  Carrowav  1752 

V.  Earl  of  "Winterton  1401 

Bloye's  Trust,  in  re  1876 

Blud worth  v.  Lake  20,  1406 


Blum  f.  Ellis  1232 

Blunt  u.  AValker  134,817 

Blydenburgh  v.  Cotheal  657 

V.  Northrop  1693 

Blver  V.  Monholland         740,  751,  752, 

1713 
Blythe  v.  Richards  711 

Board  of  Commissioners  v.  Bab- 
cock  553 
Board  of  Supervisors  of  Iowa 

Co.  L\  Mineral  Point  R.  R.  Co.  1445 

Boarman  v.  Catlett  1055 

Boatright  v.  Peck  273 

Bobbitt  V.  Flowers  382 

Boddeley  t'.  Massey  1208 

Bodine  v.  Edwards  1669 

Bodwell  V.  Webster  247,  300 

Boester  v.  Byrne  1574,  1586 

Bogert  V.  Hertell  796,  958 

Bogey  V.  Shute  1439,  1440 

Boggess  V.  Lilly  1359 

Boggs  V.  Anderson  601 

V.  Fowler  1646,  1647 

V.  Hargrave  20,  1406,  1679 

V.  Varner  594 

Bogue  V.  Williams  601 

Boguille  V.  Faille  1338 

Boisclair  v.  Jones  1483 

BoUes  V.  Beach  750 

V.  Carli  466,  1371 

V.  Chauncey  344,  557,  924,  927 

V.  Duff  1108,  1517,  1521,  1523, 

1535,  1539,  1551,  1556, 

1600,  1663 

V.  Wade  945 

Bollinger  u.  Chouteau  1128,1158, 

1414 

Bolton  V.  Ballard  666 

V.  Brewster  13,  715 

Bond  V.  Coke  435,  436 

V.  Hopkins  1195 

V.  Kent  207 

Bondurant  v.  Taylor  1084 

Bone  V.  Greenlee  537 

Bonham  i'.  Galloway  802 

V.  Newcomb  1041 

Bonithon  i\  Hockmoi'e  1132 

Boody  V.  Davis  71,  307,  350 

Boon  V.  JMurphy  207 

Boone  c.  Murphy  209 

Booraem  v.  Wood  681 

Boos  V.  Ewing  207 

Booth  V.  Barnura  70,  344,  346 

V.  Booth  1216 

V.  Rich  1572 

V.  Ryan  1506 

V.  Sweezey  1631 

xxiii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Boquet  v.  Coburn 
Borden  v.  Gilbert 
Borrows  v.  Ellison 
Borst  V.  Boyd 
y.  Corey 


1055,  1063 

1432,  1710 

1151 

827,  1168 

218,  1209 


Boston  Bank  v.  Chamberlain  105 

V.  Reed      670,  771,  1307 

Boston  Iron  Co.  v.  King         929,  1105, 

1129,  1141 

Boston  &  Worcester  R.  R.  v. 

Haven  1133,  1135,  1138 

Bostwick  V.  Menck  1478 

V.  Powers  555 

V.  Pulver  1351 

V.  Stiles  1569 

Boswell  V.  Goodwin         369,  372,  934, 

1468 
Botham  v.  Mclntier  1267 

Botsford  V.  Burr  332 

Bouligny  ?'.  Fortier  838 

Bourland  u.  Kipp  1787 

Bourne  V.  Bourne  1927,1931 

Boursot  V.  Savage  585 

Bowditoh  Mut.  F.  Ins.  Co.  v. 

Winslow  399 

Bowen  ik  Edwards  7 

V.  Kurtz  750,  768 

V.  Wood  14  73 

Bowers  v.  Crafts  893,  1898 

V.  Johnson  806 

V.  Oyster  531 

Bowes  V.  Seegar  958 

Bowery  Sav.  Bank  v.  Richards      1536 

Bowker  v.  Bull  884 

Bowles  V.  Rogers  202 

Bowling  V.  Cook  472 

Bowman  v.  Manter  943,  944 

Bowyer  v.  Bampton  616 

Boxheimer  v.  Gunn  913,  934 

Bovce  V.  Shiver  469,  517,  556 

Boyd  V.  Beck  481,  1194 

V.  Dodge  1605,  1708 

V.  Ellis  66,  1636 

V.  Higginson  1172 

V.  Hudson  City  Academical 

Soc.  1670 

V.  Parker  350,  386,  1469 

V.  Petrie  1795 

V.  Shaw  1244 

V.  Stone  300 

V.  Sumner  1606 

Boykin  v.  Rain  1322,  1396 

Boynton  v.  Champlin  191,  207 

V.  Clinton  &  Essex  Mut. 

Ins.  Co.  427 

V.  Rees  582 

Bozeman  v.  Ivey  232 

xxiv 


Brace  v.  Duchess  of  Marlborough  460, 

1082 

Brackett  v.  Baum         1421,  1589,  1751 

V.  Sears  365 

Bradley  v.  Ballard  127 

V.  Bosley  219 

V.  Chester  Valley  R.  Co. 

1355,  1755,  1792 

V.  Fuller  35,  702,  705 

V.  George  1075,  1091 

V.  Healev  1235 

V.  Heath  906 

V.  Snyder        360,  1075,  1333, 

1395 

V.  Tyson  1914 

Bradford  r.  Relfield  1787 

V.  Harper  191,  198,  232 

V.Marvin  191,209 

Bradshaw  ".  Outram  1414,  1417 

Brady  v.  Waldron  684 

Bragg  V.  Massie  277,  282,  286 

V.  N.  E.  Mut.  Fire  Ins.  Co.   425, 

427 

Brainard  y.  Cooper      874,1069,1086, 

1110,  1395,  1436 

Brainerd  v.  Brainerd  289 

V.  Peck  452 

Braman  v.  Bingham  913 

V.  Dowse  749 

V.  Wilkinson  600 

Bramhall  v.  Flood  70,  71 

Branch  Bank  v.  Fry  777 

Brandlyn  v.  Ord  582 

Brandon  v.  Brandon  1123 

Brannon  v.  Hursell  74 

Brant  v.  Robertson  272,  279 

Brantley  v.  West  286 

Brasher  v.  Cortlandt  1643 

Bratton's  appeal  515 

Brawley  v.  Catron  194 

Brayton  ?;.  Jones  1118 

V.  N.  E.  Coal  Mining  Co.  1741 

Brazleton  v.  Brazleton  606 

Breckenridge  v.  Auld  318 

V.  Brook  1114 

Breen  v.  Seward  83  7 

Breese  v.  Bange  471,  1662 

V.  Busby  ♦  1634,  1672 

Bremer  Co.  Bank  v.  Eastman  820 

Brend  v.  Brend  1076 

Brennan  v.  Whitaker  429,  445 

Brett  V.  Carter  152 

Brevoort  v.  Jackson  1351,  1579 

f.  Randolph  714,  1080 

Brewer  v.  Dyer  762 

V.  Hyndnian  1055,  1064 

V.  Staples  737,  951,  1380 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Brewer  v.  Winchester 
V.  Wortbington 
Brewster  v.  Madden 


1792 

7G9 
177,  618,  631, 
1483 
Brick  V.  Getsinger  684 

Bridenbecker  v.  Lowell  909 

V.  Prescott  1843 

Bridge  v.  Hubbard  644 

Bridgeport  v.  Blinn  1069 

Bridgeport  Sav.  Bank  v.  Eldredge 

1569 

Bridges  v.  Longman  1766 

Briggs  V.  Davis  1069 

V.  Fish  16 

V.  Hill  212 

V.  Jones  604 

V.  Kaufman  1621 

V.  Seymour  889,  1586 

V.  Sboles  1300 

Brigham  v.  Avery  79 

V.  Claflin  1232 

V.  Potter  110,  616,  622 

Bright  v.  Boyd  1128 

V.  Pennywit  1663 

Brinckerhoff  ^.'Lansing  365,  377,  382, 

558,  603,  930,  1107,  1812 

Brindernagle  v.  German  Reformed 

Church  1587 

Brinkerhoff  v.  Franklin  1479 

V.  Marvin  368 

V.  Thallhimer  1351 

V.  Vansciven  198,  207 

Brinkman,  in  re  1908 

Brinly  r.  Mann  130 

Brisbane  v.  Stoughtoa  1767,  1773, 

1777 
Briscoe  i\  Bronaugh  191,  204 

V.  Power  595,  1625 

Bristol  V.  Morgan  1432,  1711 

Britton's  appeal  461 

Britton  v.  Hunt  1414 

V.  Updike  1621 

Broach  v.  Barfield  292 

Broad  r.  Selfe  1044 

Broad  well  v.  King  212 

Brobst  V.  Brock  48,  812,  915,  1197 

Brocklehurst  v.  Jessop  1198 

Brockschmidt  v.  Hagebusch  949 

Brockway  v.  Wells  172,  1111 

Broderick  v.  Smith  76 

Brogden  v.  Walker  299 

Brolasky  v.  Miller  644 

Brolley'i;.  Lapham  1296,  1304 

Bronson  v.  Kinzie  1321 

V.  La  Crosse  R.  Co.  359 

Brooke's  appeal  515,  542,  552 

Brooke  v.  Morris  1493 


Brookhover  v.  Hurst  31,  632,  667 

Brookings  v.  White  73,  353 

Brooks,  in  re  212 

Brooks  V.  Avery  641,  644,  1493 

V.  Dairy mple  614 

V.  Jones  67 

V.  Lester  365 

Broome  v.  Beers  603,  1401,  1444,  1482 

Brothers  v.  Harrill  310 

Brotherton  r.  Hatt  586,  588 

Brou  V.  Becknel  1502 

Brouard  v.  Dumaresque  1863 

Broughton  v.  Powell  150 

Broussard  v.  Dugas  136 

Brown  v.  Bates  135,  701,  704 

V.  Becknall  915 

V.  Blydenburgh    476,  791,  964, 

1215 

V.  Brown  1839 

r.  Budd  212 

V.  Cascaden  72,  1225 

V.  Chase  1532 

V.  Cherrv  1799 

V.  Christie  191,  207 

V.  Clifford  309 

V.  Cole  888,  1052 

V.  Cram  42,  667 

V.  Dean  244,  546 

V.  Devine  1207 

V.  Dewey      258,  262,  272,  275, 

325 

V.  East  223 

V.  Edwards  1043 

V.  Frost  398,  1052,  1054,  1617, 

1668 

V.  Gaffney  293 

V.  Gilman     207,  257,  548,  600, 

1046,  1079 

V.  Herman  116 

V.  Holyoke  245 

V.  Johnson  1100,  1103 

V.  Keeney   Settlement 

Cheese  Ass'n  1446 

V.  Kirkman  542 

V.  Kurtz  1335 

V.  Lapham  666,  864,  1067 

V.  Leach  389,  668 

V.  Lynch  332 

V.  Nevitt  1425 

V.  Nickle  248,  266,  277 

V.  Orr  1718 

V.  People's  Mut.  Ins.  Co.      399 
V.  Porter  200 

V.  Scott  1355 

V.  Shearon  1454 

V.  Simons  714,  723,  1621, 

1624 

XXV 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


Brown  V.  Simpson 

191 

V.  Smith 

812,  1807, 

1902 

V.  Staples 

G8 

V.  Stead 

1401 

V.  Stewart 

34,    702, 

708, 
1215 

V.  Thompson 

1342 

V.  Thurston 

697 

V.  Tyler 

952, 

1654 

V.  Vanlier 

202 

V.  Volkening 

601 

V.  Wernwag 

950 

V.  Winter 

1654, 

1715 

V.  Wright 

315 

Browne  v.  Lockhart 

890, 

1071 

V.  Price 

1225 

Brownlee  v.  Arnold 

1184 

Bruce,  ex  parte 

183 

Bruce   v.  Bonney 

794,  970,  958 

V.  Tilson 

240 

Brudenell  v.  Vaux 

515 

Brugh  V.  Darst 

1618 

Brumagim  v.  Chew 

937 

Brundage  v.  Dom.  &c. 

1445 

I'.  Domestic  &  For.  Miss. 

Soc.  1439 

Brundred  v.  Walker  1395 

Bruse  v.  Nelson  971 

Brush  V.  Kinsley  191,  212 

Bryan  v.  Butts  13,  44,  1751,  1893 

V.  Cormick  1516,  1524 

V.  Cowart  286 

Bryant  v.  Carson  Biver  Lumber- 
ing Co.  1348 
V.  Crosby  282 
V.  Damon               813,  817,  822, 
1701 
V.  Erskine     298,  388,  389,  392, 
395,  1058 
V.  Jackson                            1058 
V.  Pennell  150 
Bryce  v.  Bowers                                 1414 
Buchan  v.  Sumner                              119 
Buchanan  v.  International  Bank     364, 
456,  557,  558 
V.  Munroe   676,  1359,  1759, 
1792 
Buck  V.  Fischer                                1388 
V.  Payne  38 
Buckland  v.  Packnell                194,  198 
Buckley  v.  Daley  38 
Bucklin  v.  Bucklin                              614 
Buckmaster  v.  Jackson                     1662 
V.  Kelly                          916 
Buckner  v.  Sessions               1323,  1457 
Buckout  V.  Swift                144,  453,  693 
Buell  V.  Tate                                   1503 

XX  vi 


Buffalo  Steam-engine  Works  v. 

Sun  Mut.  Ins.  Co.  398,  406,  418 

Buffam's  case  1663 

Buford  V.  Smith  1181 

Bugbee  v.  Howard  1051 

Bukley  v.  Chapman  805 

Bulger  V.  Holly  204 

Bulkeley  v.  Hope  854 

Bulkley  v.  Dayton  958 

Bull  V.  Harris  121 

V.  Meloney  1456,  1482 

V.  Shaw  176 

V.  Sykes  136,  173 

Bullard  v.  Green  1641,  1673 

V.  Leach  848,  978,  1436 

V.  Raynor  644 

Bullwinker  v.  Ryker  1475,  1477 

Bumgardner  i'.  Allen  748 

Bumpus  V.  Platner  1502 

Bunacleugh  v.  Poolman  340 

Bunce  v.  Reed  1751,  1860,  1904, 

1905,  1937 

Bunting  v.  Ricks  580 

Burbank  v.  Gould  769 

Bui'd  V.  Dansdale  1355 

Burden  v.  Thayer  774,  785 

Burdett  v.   Clay  383,    817,    927, 

928 

Burdick  i\  Burdick  1720 

t>.  Jackson  163,  164,  1231 

Burford  v.  Rosenfield  1587 

Burgayne  v.  Spurling  888 

Burger  v.  Hughes  208 

V.  Potter  208 

Burgess  v.  Eve  365 

Burgh  V.  Francis  462 

Burgwin  v.  Richardson  1469 

Burk  V.  Chrisman  1627 

Burke  ?'.  Allen  ,  560 

V.  Lynch  1155 

V.  Miller  1298 

V.  Nichols  1502 

Burkham  v.  Beaver  1407,  1717 

Burkman  i'.  Beaver  1401 

Burn  V.  Burn  462 

Burnap  v.  Cook  1420 

Burnays  v.  Feild  216 

Burnet  v.  Denniston         792,  900,  951, 

1081,  1086,  1683,  1751,  1785,  1799, 

1808,  1845,  1852 

Burnett  v.  Pratt       135,  356,  704,  794, 

958,  1283 

Burnham  v.  De  Bevorse  1233 

Burnhisel  v.  Firman  1231 

Burns  i'.  Collins  405 

V.  Lynde  90,  llO 

V.  Taylor  191,  211 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Burns  v.  Thayer  927,  1103,  1741, 

187G,  1886,  1902,  1904 


123 

26,  60,  261 

433,  435,  447 

168 

1630 


Burnside  v.  JMorrick 

V.  Teri'y 

V.  Twitchell 

V.  Way  111  aa 

Burpee  v.  Parker 

Burr  V.  Beers    741,  748,  752,  758,  760, 

1408,  1721 

V.  Mueller  1887 

V.  Stenton  1696 

V.  Veeder     358,  1134,  1597,  1683 

Burrell  v.  Earl  of  Egremont  1198 

Burridge  v.  Fogg  1295 

Bunill  i:  Naliant  Bank  127 

Bun-owes  v.  MuUoy      1052,  1177,  1178 

1530 
Burrus  v.  RouUiac  207 

Burson  v.  Huntington  87,  616 

Burt  V.  Saxton  1176,  1189 

V,  Wilson 
Burton  v.  Baxter   787, 
V.  Hintrager 
V.  Lies 
V.  MeKinney 
V.  Pressly 
Busby  V.  Finn 
Busenbarke  v.  Ramey 
Busey  v.  Hardin 
Bush  V.  Cooper 


191,  204 

817,  1377,  1427 

1207 

1414,  1420 

221 

924 

745 

99 

1637,  1641 

610,  889 


V.  Cushnian  683,  846,  942,  1787, 
1839,  1852,  1877,  1910,  1922 
V.  Lathrop      475,  476,  560,  827, 
842,  844 


V.  Sherman 

1800 

Bushell  V.  Bushell 

570 

Bushfield  v.  Meyer 

1180, 

1702 

Bussey  V.  Page 

689 

Buswell  V.  Peterson 

1541, 

1562 

Butler  V.  Ladue 

385, 

1188 

V.  Miller 

936 

V.  Myer 

1494 

V.  Page 

433, 

1120 

V.  Seward 

864 

,  867 

V.  Stevens 

580,  601 

V.  Taylor 

792 

V.  Viele 

572 

V.  Williams 

232 

Batman  v.  Hussey 

828 

Butt  V.  Ellett 

151 

Butterfield  v.  Farnham 

1743, 

1845, 
1855 

Button  V.  Schroyer          ] 

173,  226, 

1541 

Buttrick  V.  Wentworth 

1929 

Bybee  v.  Hagenian 

1656 

Byers  v.  Fowler 

929 

V.  McClanahan 

90 

Byles  V.  Tome 
Byrne  v,  Taylor 
Byrom  v.  Chai^in 
Byron  v.  May 


472,  499 

1414,  1420 

454,  695 

1443 


c. 


Caddick  r.  Cook  1102 

Cady  V.  Shepard  121 

Cage  V.  Her  1701 

CaiUard  v.  Caillard  1526 

Cain  i>.  Gimon      644,  1493,  1669,  1671 

Cake's  appeal  465 

Calder  v.  Chapman  546,  576 

Caldwell  V.  Bo  wen  1358 

V.  Fraim  228 

V.  Taggart  1396 

V.  Walters  1355 

Calhoun  v.  Tullass  1377 

Calkins  i'.  Calkins  44,  1170 

u.  Isbell  1096,1160 

V.  Lockwood  932 

V.  Long  613 

V.  Munsel  1063 

Call  V.  Leisner  1248,1281 

Callahan  v.  Linthicum  420 

Callanan  v.  Shaw  1516,  1529 

Callis  V.  Day  104,  105 

Calloway  v.  People's  Bk.  of  Belle- 

fontaine         1732,  1768,  1794,  1846, 

1852,  1932 

Calverley  v.  Phelp  1397 

Calvin  v.  Bowman  555 

Calvo  V.  Davies         735,  740,  741,  742 

Cambridge  Valley  Bk.  v,  Delano     595 

Camden  v.  Vail  207,  208 

Cameron  v.  Adams      1053,  1915,  1916 

V.  Irwin         889,  1799,  1898, 

1899 

V.  Mason  191 

Camp  V.  Coxe  1229 

V.  Small  1333 

V.  Smith  '    887 

Campbell  v.  Babcock  1493 

V.  Betkford  1166 

V.  Bemis  1291 

V.  Burch  805 

V.  Carter  820 

V.  Dearborn      275,  300,  322, 

325,  328,  341 

V.  Gardner  1676 

V.  Henry  207 

y.  Johnston  133  7,  1493, 

1626,  1704,  1737 

V.  Knights  856,  865 

V.Macomb    1120,  1351,  1616 

xxvii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Campbell  v.  Rankin  191,  225,  235 

V.  Roach  206,  214,  219 

V.  Smith     90,  757,  802,  1714 

V.  Swan         1G77,  1873,  1878 

V.  Vedder         472,  474,  476, 

558,  735,  870 

V.  Worthington  317 

Campion  v.  Kille  660 

Candee  v.  Burke  1843,  1921,  1922 

Candler  v.  Petit  1478 

Cannon  v.  Bonner  207 

Capen  v.  Richardson  1250,  1266 

Caperton  v.  Landcraft  1817 

Capper  v.  Spottiswoode  207 

Capron  v.  Attleborough  Bank         1768 

Card  V.  Jaffray  284 

Carey  v.  Rawson   '  179,  247,  300 

Cargill  V.  Power  1051 

Carleton  v.  Byington    467,  1335,  1488, 

1717 
V.  Woods  620 

Carli  V.  Taylor  47  7 

Carlisle  v.  Wilkins  1231 

Carll  V.  Butman  869,  1292 

Carlton  v.  Biickner  212,  216 

V.  Jackson  944 

Carlyon  v.  Lannon  306 

Carman  v.  Pultz  901,  958 

Carmichael  v.  Bodfish  1493 

Carnall  v.  Diivall         85,  353,  540,  547 
Carnegie  v.  Morrison  762 

Carnes  v.  Hubbard  207 

Carow  V.  Kelly  644 

Carpenter   i;.  "Black    Hawk    Gold 

Mining  Co.  1828 

V.  Bowen  38,  1229 

V.  Carpenter     49,  252,  338, 

1309 

V.  Koons  1621,  1623 

V.  Longan       804,  834,  840, 

843,  1487 

V.  Millard  141,  1514 

V.  Mitchell      116,  212,  229, 

230,  235 

V.  Mooers  1325,  1333 

V.  Miiren  627 

V.  O'Dougherty    1368,  1369 

V.  Parker  776 

V.  Pi-ov.  Washing.  Ins. 

Co.  401,  419 

Carpentier  v.  Brenham  20,  1207,  1425, 

1679 

V.  Williamson  1425 

Carr  v.  Caldwell  466,  1414 

V.  Carr  809,  322,  331 

V.  Hobbs  191,  204 

V.  Holbrook  228 

xxviii 


Carr  v.  Rising  241,  262,  268,  275 

Carradine  v.  O'Conner        1322,  1443, 

1773 
Carrico  v.  Farmers'  &  Merchants' 

Nat.  Bank  207 

Carriere  v.  Minturn  1606 

Carroll  v.  Ballance  27,  719,  1333 

1'.  Rossiter  1051 

V.  Van  Rensselaer  191 

Carter  v.  Abshire  1859,  1895 

V.  Bennett  804 

V.  Carter  316,  324 

V.  Champion  532,  1436 

V.  Neal  1624 

V.  Rockett  400,  401 

V.  Sims  227 

V.  Taylor  16,  848,  874 

V.  Walker  1350,  1654 

V.  Williams  326 

Caruthers  v.  Humphrey      36,  717,  889, 

893 

V.  Hunt  244 

Cary  v.  Folsom  1621 

V.  Prentiss  938 

V.  Wheeler  1420,  1710 

V.  White  458,  459 

Caryl  v.  Williams  807,  1457,  1480 

Casady  v.  Rosier  1808 

Casborne  v.  Searfe  6 

Casburne  v.  Inglis  1067 

Casey  v.  Buttolph  849 

Cash  v.  Belcher  1099 

Casler  v.  Shipman  16  78 

Cassamajor  v.  Strode  1642 

Cassel  V.  Cassel  1334 

Cassily  v.  Rhodes  1658 

Castleman  v.  Belt  1666 

Castro  V.  lilies  1575 

Catlin  V.  Fletcher  625 

V.  Glover  1923 

V.  Grissler  1449 

V.  Henton  11 

V.  Washburn  951 

Cator  V.  Earl  of  Pembroke     199,  205, 

223 
Cattel  V.  Warwick  951 

Caufman  v.  Sayre       1146,  1181,  133  7, 
1444,  1547,  1557,  1617 
Cavis  V.  McClary  777,  1251 

Cazenove  v.  Culter  1085,  1732 

Cazet  V.  Field  616 

V.  Hubbell  1642,  1643 

Cecil  V.  Dynes  1181,  1454,  1462 

Center  v.  Planters'  &  Merchants' 

Bank  481,  580,  597,  599,  817 

Central  Bank  of  Frederick  v.  Cope- 
land  113,626,810 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Central  Gold  Mining  Co.  v.  Piatt  1828 

Chadbourne  v.  Forster  1444 

V.  Rackliff  1298 

Chad  wick  v.  Clapp  167 

Chaff raix  v.  Packard  1615 

Chaires  v.  Brady  291 

Chalabre  v.    Cortelyou  1120 

Chalmers  v.  Goldwin  1525 

Chamberlain  v.  Barnes  827 

V.  Dempsey      1467,  1494, 

1600,  1605, 1612 

V.  Gardiner  1261 

V.  Lyell  1440 

V.  Meeder  889 

V.  Thompson  22,  664 

Chambers  v.  Goldwin    281,  650,  1044, 

1373 

V.  Keene  1337 

V.  Nicholson  1420 

Champion  v.  Brown  204 

V.  Kille  663 

Champlin  v.  Foster  1439,  1590 

V.  Laytin       970,  1492,  1506 

V.  AVilliams  743 

Champney  v.   Coope      848,   855,   889, 

944 

Chance  v.  McWhorter      200,  204,  582 

Chandler  v.  Cook  1852 

V.  Dyer  569,  1048,  1069 

V.  McKinney  105 

V.  Temple  84 

Chapin   v.  First   Universalist 

Church  in  Chicopee      799 

V.  Vermont,  &c.  R.  Co.        124 

Chapman  v.  Beardsley  191,  194 

V.  Hunt  913 

V.  Jenkins  382 

V.  Lester  731,  981 

V.  Mull  712 

V.  Ogden  268 

V.  Robertson  659,  661,  1496, 

1595 

V.  Smith  1116,  1118 

V.  Stock  well  198 

V.  Tanner  189 

V.  Turner  318 

Chappell  V.  Allen  817,  984 

V.  Dann  1636 

I'.  Rees  1401 

Chappie  V.  Mahon  1044 

Charles  v.  Clagett  281 

t;.  Dunbar  1121 

Charter  v.  Graham  544 

V.  Stevens  1857 

Chase  v.  Abbott  924,  927,  1396,  1420, 

1425 
V.  Box  911 


Chase  v.  Brown 

1497 

V.  Ewing 

677 

V.  Gates 

1261 

V.  Marston 

1257,  1258 

V.  McDonald 

669 

r.  McLellan       1053,1240,1265 

V.  Palmer  1120,  1239,  1339 

V.  Peck  163,  166,  191,  194,  223, 

241,  715,  1052,  1093 

V.  Woodbury    1089,  1090,  1621, 

1624 

Chauncy  v.  Arnold  90 

Chavener  v.  Wood  606 

Chawner's  Will,  in  re  1766 

Cheek  v.  Waldrum  16  78 

Cheesebrough  v.  Millard        461,  879, 

1624 

Cheever  v.  Fair  723,  1091,  1576 

V.  Perley  915,  1196 

Chellis  V.  Stearns  42,  675 

Cheney  v.  Gleason  624 

V.  Woodruff  398 

Cherry  v.  Bowen  251,  1039 

V.  Monroe  737,  1380 

Chesley  v.  Chesley  1857,  1859 

Chester  i'.  Greer  603 

V.  King  1401 

V.  AVheelwright  348 

Chestei'man  v.  Gardner  1502 

Cheval  v.  Nichols  570 

Chew  V.  Barnet  155 

V.  Buchanan  1699,  1701 

Chewning  v.  Proctor  678 

Chicago,  Rock  Island,  &c.  R.  Co. 

r.  Kennedy  1902,  1913 

Chick  v.  Robbins  1195 

V.  Rollins  915,  1194 

V.  Willetts  13,  30,  71,  1207 

Chickering  v.  Failes      714,  1325,  1333 

Childs  V.  Childs  1070,  1073,  1406,  1678 

V.  Clark  785 

V.  Dolan  681,  1127,  1741,  1905 

I'.  Gr  is  wold  295 

Chilton  V.  Braiden  191 

Chinnery  v.  Evans  1198 

Chipman  v.  Tucker  87,  616 

Chittenden  v.  Gossage  1226,  1335 

Cholmley  v.  Countess  of  Oxford    1108 

Cholmondely  v.  Lord  Clinton  712, 

1072,  1098,  1158,  1194,  1401,  1409, 

1417 
Choteau  v.  Thompson  363,  383,  934 
Chouteau  v.  Burlando  1212 

Chowning  v.  Cox  1060 

Christian  v.  Austin  198,  210 

V.  Newberry        92,  927,  929 
Christie  v.  Hale  293,  33  7,  605 

xxix 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


Christie  v.  Herrick     1373,  1374,  1386, 

1426 

Christophers  V.  Sparke  1194 

Christy  v.  Dana  153,  173 

Church  V.  Cole  250,  332 

V.  Fisher  1500,  1501,  1503 

V.  Maloy  912,  1186 

V.  Smith  225 

Churchill  ?;.  Beale  1106 

V.  Loring  1290 

V.  Morse  462 

Cicotte  i;.  Gagnier  834, 1487 

Cilley  V.  Huse  863 

Cissna  v.  Haines    924,  929,  936,  1618, 

1621 
Citizens'  Bank  v.  Knapp  435,  453 

City  Bank  of  Kenosha  v.  McCIel- 

lan  63 

Clabaugh  v.  Byerly  465,  557 

Clark  ('.  Abbott  1577 

V.  Brown  568 

V.  Bush  '   712 

V.  Carnal]  1684 

V.  Clark  789,  849 

V.  Condit  251,  338,  1750 

V.  Crosby  1265, 1272 

V.  Curtis  771 

V.  Farrington  134 

V.  Flint  841 

V.  Hall  192 

r.  Henry  244,251,309,340,1045 

t'.  Hobbs  307 

V.  Hunt  198 

V.  Iglestrom  956 

V.  Jenkins  597 

V.  Laughlin  956 

I'.  Long  1099 

V.  Lyon  244,  250 

V.  Monroe  464 

V.  Oman  381 

V.  Pease  1297 

V.  Prentice  1439 

V.  Reyburn       11,  453,  664,  688, 

702,  1321,  1401,  1565 

V.  Smith    414,  1124,  1127,  1132 

V.  Wilson  409,  420,  421 

Clarke  v.  Bancroft         346,  1511,  1590 

V.  Havens  1442 

V.  Lord  Abingdon  1593 

V.  Ptoyle  198 

V.  The  Royal  Panopticon   1766 

Clarksonv.  Creely  1825 

V.  Read  1643 

Clarksons  v.  Doddridge  813 

Clary  v.  Owen  439 

Clason  V.  Corley   669,  771,  1516,  1659 

1666 


Clason  V.  Sheperd 

608 

Clawson  V.  Munson 

635 

Clay  V.  Sharpe 

1900 

V.  Willis 

1695 

.  V.  Wren 

80,  668 

Clayton's  case 

908 

Clearwater  v.  Rose 

67,  813 

Cleaveland  v.  Boerum  1147,  1411,  1438 

V.   Clark  1081 

Cleavenger  v.  Bleath  1469 

Clemons  v.  Elder  548 

Cleveland  v.  Harrison  1204 

V.  Martin  226,  235,  942 

V.  Southard  748 

Cleveland  Ins.  Co.  v.  Reede  1147,  1195 

Cliff  I'.  Wadsworth  902,1088 

Clift  V.  White  848,  921 

Clifton  V.  Foster  1232,  1235 

V.  Livor  1331 

Climie  v.  AVood  441,  448 

Cline  f.  Lilow  1406,  1412 

Clinton  V.  Hope  Ins.  Co.  418 

Clinton  Nat.  IBank  v.  Manwarring  665 

Close  V.  Phipps   903.,  1085,  1801,  1819 

Clowes  V.  Dickenson   1092,  1621,  1701 

Clute  V.  Robison  546,  842 

Coates  V.  Woodworth  282,  293 

Cobb  r.  Lucas  63 

V.  Thornton  1709 

Cochran  v.  Utt  66 

V.  Wimberly  227 

Cockburn  v.  Thompson  1367 

Cockell  11.  Bacon  1215 

Cockey  v.  Cole  1740 

V.  Milne  610 

Cockrill  V.  Johnson  1231 

Coddington  v.  Bay  458 

Codrington  r.  Parker  1525 

Codwise  v.  Taylor  221 

Coe  1-.  Beckwith  1385 

V.  Columbus,  &c.  R.  Co.   124,  149 

V.  Col.  Piqua  &  Ind.  R.  Co.      595 

V.  McBrown  154 

V.  Peacock  156 

V.  Winters  572 

Coffin  V.  Cooper  1648 

V.  Loring  75,  300,  1282 

V.  Ray  583 

Coffing  V.  Taylor  79 

Coggiil  V.  Millburn  Land  Co.  693 

Coggs  V.  Barnard  893 

Cohoes  Co.  V.  Goss  1 751,1  785, 1787,1822 

Coiron  i\  Millaudon  709 

Coit  ('.  Fitch  950,  1215 

V.  Fougera  194,  207,  208 

Coker  v.  Pear  sail  7  77 

Colby  V.  Cato  767 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Colby  V.  Poor 

1248,  1254 

V.  Rowley 

1680 

Cole  V.  Blake 

1088 

V.  Boland 

264,  312,  324 

V.  Connor 

1444 

V.  Edgerly 

855 

V.  Mollitt 

1751,  1822 

V.  Runge 

376 

V.  Sackett 

924 

V.  Savage 

1813 

V.  Scot 

193 

V.  Stewart 

433 

Colegrave  r.  Dias  San 

tos 

433 

Coleman  v.  Van  Rensselaer 

114, 677 

807, 

1225,  1457 

Coles  V.  Coles 

666 

V.  Forrest 

1397,  1418 

Colgin  V.  Henley 

750 

Collanier  i'.  Langdon 

700,  926 

Collar  V.  Harrison 

991, 

1607,  1925 

Collier  v.  Ervin 

1472,  1590 

V.  Whipple 

1612, 

1640, 1G76 

Collins  V.  Blantern 

618,  619 

V.  Carlile 

372,  374,  1453 

V.  Hopkins 

1786,  1792 

V.  Riggs 

1075 

V.  Rowe 

735,  748 

V.  Standish 

1924 

V.  Tillou 

289 

V.  Torry       664,  666,  701,  867, 

915,  1195 

Colman  v.  Duke  of  St 

.Alb 

xns         69  7, 
1120 

V.  Packard 

80,  668,  1289 

V.  Post 

1489 

Colquhoun  v.  Atkinsons 

569 

Colsell  V.  Budd 

916 

Colton  V.  Colton 

871 

V.  Smith 

703,  706 

Colton,  ex  parte 

441 

Columbia  Bank  v.  Jacobs 

549 

Columbian  Building  Ass'n 

V.  Crump 

899,902 

Columbian  Ins.  Co.  v 

Lawrence      401 

Colvin  I'.  Buckle 

1187 

Colwell  V.  Hamilton 

1355 

V.  Warner 

1057,  1569 

V.  Woods 

244,  277 

Colyer  v.  Colyer 

863 

Comegys  v.  Clark 

113 

Comley  v.  Hendricks 

1440 

Commercial  Bank  v.  Cunningham  365, 

3 

'7,  379,  382 

V.  Reckless         1454 

Commercial  Bank  of  Lake 

Erie  v. 

W.  R.  Bank 

1621 

Commissioners  v.  Northern  Bank  1375 

Commonwealth  v.  Gould  919 

V.  Ragsdale  1663 

V.  Smith  124 

Comstock  V.  Comstock  1439 

i'.  Drohan      741,  1223,  1721 

V.  Hitt  748 

V.  Scales  150,  151 

V.  Smith  754,  86  7 

V.  Stewart  281 

Comyns  v.  Corny  ns  1044 

Conard  r.  Atlantic,  &c.  11 

V.  Atlantic  Ins.  Co.  369 

Concklin  v.  Coddington  1602 

Concord  Bank  r.  Bellis  106 

Concord   Union  Mut  F.  Ins.  Co. 

V.  Woodbury         408,409,  420,  421, 

1240,  1273 

Condit  V.  Baldwin  642 

V.  Tichenor  308 

Conger  v.  Ring  1636 

Conklin  v.  Bowman     1464,  1503,  1609 

Connecticut  v.  Bradish  574 

V.  Jackson  650,  1139 

Conner  v.  Banks  232 

V.  Whit  more  703 

Conners  v.  Holland  652,  1792 

Connor  v.  Banks  235 

V.  Chase  317,  330 

V.  Earl  of  Bellamont  660 

V.  Eddy  68 

V.  Whitmore  700 

Conover  v.  Hobart  1494 

V.  Mut.  Ins.  Co.  of  Albany  422 

V.  Van  Mater     475,  572,  608, 

643 

V.  Warren  191 

Conrad  t'.  Gibbon  1606 

V.  Harrison  '    1621 

Converse  v.  Cook  740,  752,  1569 

V.  Searls  •        789 

I'.  Sorley  220 

Conway  v.  Alexander     258,  259,  262, 

26i,  272 

Conwell  V.  Clifford        612,  1490,  1503 

V.  Evill  294,  335 

Cooch  V.  Gerry  24,  664,  701 

Cook  V.  Banker  201 

V.  Barnes  620 

V.  Clark  73 

V.  Colyer  29  7 

V.  Dawson  1766 

V.  De  la  Guerra  1482,  1483 

V.  Farnam  1648 

t".  Gudger  310 

V.  Guerra  773 

t'.  Kraft  201,  358,  1134 

V.  Mancius  1048 

xxxi 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Cook  V.  Tinkler  1144 

V.  Travis  5G0,  576,  582,  600 

Cooke  V.  Brown  1708 

V.  Crawford  1787 

Cooker  v.  Culbertson     306,  1117,  1204 

Cooley  V.  Hobart  121,  610 

Coombe,  ex  parte  183 

Coombs  V.  Jenkins  766 

Cooper  V.  Bigly  66,  562,  1621 

I'.  Cole  69  7 

V.  Davis  684 

V.  Martin  1395,  1425 

V.  Merritt  223 

V.  Newland  804,  805,  1376 

V.  Skeel  295 

V.  Ulman  821 

V.  Whitney  340 

Coopers  v.  Wolf  152,  452 

Coor  ().  Spicer  616 

Cope  V.  Wheeler  657,  658,  1939 

Copeland  ??.  Copeland  5  72 

V.  Mercantile  Ins.  Co.      130 

V.  Yoakum  244,  1101 

Copis  V.  Middleton  882 

Copleston  P.  Boxwill  272 

Copley  IK  Dinkgrave  497 

Copperthwait  v.  Dummer  1222 

Coppin  V.  Fernyhough  595 

V.  Gray  1172 

Coppring  v.  Cooke  1121 

Corbett  v.  Rice  1348 

V.  Waterman        741,  742,  748, 

752 

Corbit  V.  Smith  295 

Cord  V.  Hirsch  1401,  1404,  1406,  1414, 

1608 
V.  Southwell  1618,  1683 

Cordert;.  Morgan  1792,  1901 

Cordeviolle  v.  Dawson  497,  546 

Cordova  v.  Hood       205,  210,  212,  217 
Corley  v.  Hobart  1454 

Corlies  v.  Howland  191,  198,  202,  204, 

210 
Corliss  V.  McLagin  447 

Cormerais  u.  Genella  1324,  1720, 

1725,  1773 
Corn  Exchange  Ins.  Co.  v.  Bab- 
cock  109,  111 
Cornelius  v.  Halsey  1457 
Cornell  v.  Hall                    258,  262,  279 
V.  Hickens    134,  616,  814,  834, 
1487 
V.  Prescott             751,  755,  768 
Corning  v.  Baxter  1467 
V.  Murray                       558,  56  7 
V.  Smith        1439,  1440,  1445, 
1589 

xxxii 


Cornish  v.  Bryan 

846 

Cornog  V.  Fuller 

472,  987 

Corpman  v.  Baccastow 

1755 

Cortelyeu  v.  Hathaway 

1516,  1520, 

1533 

Corwin  i>.  CoUett 

951 

Coster,  re 

961 

Coster,  ex  parte 

953 

Coster  V.  Bank  of  Ga. 

481 

V.  Brown 

1441,  1509 

V.  Griswold 

846 

V.  Munroe  Manuf.  Co.  1500 

Costigan  ;;.  Hastier  776 

Cotheal  v.  Blydenburgh  660 

Cotten  V.  Blocker  665 

Cotterell  v.  Long  163,  250,  311 

V.  Purchase  243,   328 

Cottman  v.  Martin  198 

Cottnell  V.  Adams  787,  817 

V.  Purchase  271 

Couch  V.  Stevens  926,  940,  1270 

Couger  V.  Lancaster  677 

Coulter  V.  Herrod  1642 

County  Commissioner  v.  Colum- 
bia Co.  653 
Coursen  v.  Canfield  1505 
Coui'teney  v.  Carr  29 
Courtney  v.  Scott  165 
Couse  V.  Boyles  1500 
Coutant  V.  Servoss  104,  129,  353,  722, 

981 
Cover  V.  Black  460 

Cowan  i\  Green  544 

Cowdrey  v.  Coit  1502  - 

V.  Galveston  R,  Co.         1535 

Cowdryv.  Day  1040 

Cowelf  w.  Buckelew,  1584,1717 

Cowing  V.  Rogers  336 

Cowl  V.  Varnum  198 

Cowles  f.  Marks  117 

V.  Raguet  619,   626 

V.  Woodruff  1482,  1493 

Cox  V.  Champneys  1519 

V.  Douglass  1493 

V.  Hoxie  744,  1079 

V.  Smith  650,  1606 

V.  Wheeler  901,  1751,  1860,  1871, 

1937 

Coxe  V.  Halstead  1874 

Coy  V.  Downie  1503 

Coyle  V.  Davis  728,  982 

Craft  V.  Bullard  1052 

Crafts  V.  Aspinwall  1621 

V.  Crafts         71,  351,  357,  1063 

Craig  V.  Tappin  368,  374 

Crain  v.  Paine  1204 

Cramer  v.  Lepper  651,  745,  1494 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Crane  v.  Bonnell  308,  324 

V.  Briirham  429 

V.  Buchanan  271,  294,  324 

V.  Decamp  308 

V.  Deming  70,  344,  3C7,  369,370 

V.  Hanks  1569 

V.  March       813,  818,  819,  1229 

V.  Turner        469,  560,  576,  679 

V.  ^Vard  76 

Cranston  v.  Crane      1782,  1798,  1861, 

1890,1891,  1894,  1913 

Crasson  v.  Swoveland       244,  266,  600 

Craver  t'.  Wilson  612,  613 

Crawford  v.  Edwards       744,  752,  754, 

755,  1408 

V.  Taylor      295,  1144,  1152, 

1193 

Crawley  v.  Riggs  216 

Craythorne  v.  Swinburne  882 

Cree  v.  Lord  1094 

Creighton  v.  Hershfield  1720 

V.  Paine  1663 

V.  Planters'  &  Merchants' 

Bank  1663 

Crenshaw  f.  Seigfried  1615,  1775, 

1871 

Cresson  v.  Stout  444 

Crews  V.  Pendleton  697,  1658 

V.  Threadgill  266,  275,  286,  328, 

329,  1095 

Crippen  v.  Heermance  208 

V.  Morrison  669 

Cripps  V.  Jee  284 

Crittenden  v.  Rogers  1244 

Crittendon  v.  Brainard         1145,  1193 

Crocker  r.  Robertson  1 734 

V.  Thompson  913 

Croft  V.  Bunster        84,  788,  817,  834, 

842,   843,  1485,  1486,  1487 

Cromwell  v.  Bank  of  Pittsburg      1484 

V.  Brooklyn  F.  Ins.  Co.    400 

Cronin  v.  Hazeltine  1251,  1285 

Cronise  v.  Clark  105 

Crook  f.  Glenn  1195 

Crooke  v.  O'Higgins  1403 

Crooker  v.  Frazier  1229 

V.  Holmes  1204 

i\  Jewell  796,915 

Cropper  v.  Mellash  1397 

Crosby  v.  Brownson  813 

V.  Chase  856 

V.  Harlow  775 

V.  Huston  1769 

V.  Leavitt  889 

V.  Roub  814 

t'.  Taylor  856 

Cross  V.  Burns  1215 


Cross  V.  Gannett  953 

V.  Hepner  266 

V.  Hipner  294 

V.  Robinson  22,  68,  664,  682,  889 

V.  Stahhnan  984 

V.  State  Bank  90 

Crossfield,  ex  parte  181 

Crouse  V.  Holman  1459,  1699 

Crow  V.  Tinsley  665 

V.  Vance       813,  817,  820,  1207, 

1425 

Crowell  V.  Currier  762 

Crowley  v.  Riggs  212 

Crowningshield  v.  Kittridge  627 

Cruger  v.  Cruger  109 

V.  Daniel  1413,  1593 

Cruikshank  i;.  Duffin        .  1766 

Crumbaugh  v.  Smock  176 

Crumpton  v.  Baldwin  1672 

Crutcher  v.  Hord  1800 

Crutchfield  v.  Coke  1337,  1711 

V.  Haynes  1880 

Cubberlv  v.  Wine  1577 

Cuddick  V.  Cook  1401 

Culbertson  v.  Lennon  1809 

CuUum  V.  Batre  1-416 

V.  Branch  Bank  of  Mobile 

881,  924,  926 

V.  Erwin  817,  822,  1701 

CuUwick  V.  Swindell  441 

Culver  V.  Bigelow  641,  650 

V.  Harper  1693 

V.  Rogers  1324 

r.  Sisson  677,1225 

Cumberland   Coal  &  Iron  Co.  v. 

Parish  842 

Gumming  t;.  Gumming  1621 

Gummings  v.  Oglesby  235 

V.  Sharpe  112 

Cummins  v.  Cassily  90 

r.  Wire  1493 

Cuney  v.  Bell  197 

V.  Dupree  316 

Cunnino-ham  v.  Hawkins        288,  1146 

V.  Pattee  601 

Currier  v.  Gale  703,  889,  892 

Curtis  V.  Bronson  44 

V.  Buckley  1'4 

V.  Engel  "  109 

V.  Goodenow  1471 

V.  Hithcock  1351,  1411 

t'.  Lvman  553 

V.  Mundy  579,  580 

V.  Root  137,  466 

V.  Tvler         752,  755,  881,  883, 

1432,1433,1711,1713 

Curtiss  V.  Bush  1502 

xxxiii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Curtiss  V.  Tripp  986 

Gushing  t'.  Ayer  1240 

V.  Hurd  665 

V.  Thompson  421 

Cushman  v.  Stone  1789,  1838 

Cuthbert  v.  Haley  64G 

Cutler  V.  Haven  816,  962 

Cutter  V.  Davenport  797 

V.  Dickinson  244 

V.  Jones  1395 

Cutts  V.  York  Manuf.  Co.  139,  1170, 

1247,  1250,  1265,  1266,  1277 


D. 


Dabney  v.  Green  318 

Dadmun  r.  Lampson  665,  703,  789 

Daggett  V.  Rankin  163,  168,  1689 

Daily  v.  Kingon  1580 

Dale  V.  Bugh  1334 

V.  MeEvers  358,  1080,  1134,  1683 

Dallas  r.  Floyd  1154 

Dalmer  v.  Dashwood  1516,  1519,  1522 

Dalton  V.  Hayter  1095 

Daly  V.  Burchell  1404,  1407 

Dana  v.  Binney  924 

V.  Coombs  104 

V.  Farrington  1822,  1852 

Danbury  i'.  Robinson    827,  1604,  1605 

Danforth  v.  Coleman  1228,  1719 

V.  Roberts  1054,  1265 

Dan  Hartog  r.  Tibbitts  1478 

Daniel  v.  Adams  1863 

17.  Leitch  164  7 

t'.  Skipwith  1414 

V.  Sorrells  481 

Daniels  v.  Alvord  289,  1060 

V.  Eisenlord  393 

V.  Mowry  1158,  1245 

Danley  v.  Hays  817 

Danzeisen's  appeal  250,  332 

Darcy  v.  Blake  1527 

Dargin  v.  Beeker  596 

Darling  v.  Chapman  891,  1307 

Darlington  v.  Effey  1414 

Darst  V.  Bates  929,  936 

Dart  u.  McAdam  378,1498 

Darvin  r.  Hatfield  1107 

Dashwood  t'.  Bithazey  1572 

Daubenspeck  v.  Piatt  255,  324,  328, 

600 

Dauchey  i'.  Bennett  10G9,  1087 

Daughaday  v.  Paine  205,  207,  209 

Daughdrill  v.  Sweeney  1095 
Daun  V.  City  of  London  Brewery 

Company  365 

xxxiv 


Davenport  ('.  Bartlett  1120 

V.  N.  E.  Mut.   F.  Ins. 

Company  399 

V.  Shants  431,  436 

V.  Sovil  98 

V.  Turpin  1412,  1425 

Davey  v.  Durrant        1801,1821,  1863, 

1871,  1875,  1883 

Davidson  v.  Allen  212,  215 

V.  Cooper  90 

V.  King  615 

V.  Lanier  117 

Davies  v.  Austin  842,  843 

V.  Williams  1388 

Davis  V.  Anderson  26 

V.  Banks  299 

I'.'Barnett  857 

V.  Battine  939 

V.  Bean     1134,  1137,  1296,  1501 

V.  Clay  250 

V.  Converse  1410,  1434 

V.  Cox  208,  1462,  1464 

V.  Dendy  1132 

V.  Dowding  1572 

V.  Dudie  1075,  1100,  1111 

V.  Duke  of  Marlborough    1522, 

1524,  1537 

V.  Fargo  911 

V.  Gray  1535 

V.  Hamilton  228,  1229 

I'.  Hemingway  266,  1383 

V.  Holmes  1345,  1549 

V.  Hopkins  268,  293 

V.  Jewett  564 

U.Lane  1793 

V.  Langsdale      1077,  1334,  1699 

V.  Lassiter  1118 

V.  Maynard  936 

V.  Pearson  205 

V.  Pierce  848 

V.  Quincy  Mut.  F.  Lis.  Co.  412 

V.  Rider  728 

V.  Rogers  732,  1257 

V.  Stonestreet         258,  275,  294, 

329 

V.  Teays  9 

V.  Thomas     258,  264,  275,  1043 

r.  Thompson  1296,  1313 

r.  Wetherell  1065,1067 

V.  Winn     878,  1070,  1073,  1137 

Davison  v.  De  Freest  1502 

Dawson  v.  Danbury  Bank     600,  1439, 

1441 

Day  ?;.  Baldwin  1192 

V.  Bergen  1351 

I'.  Clark  575 

V.  Cushman  1333 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Day  V.  Gudgen  1G04 

V.  Mooney  848 

V.  Patterson  1621 

V.  Perkins         439,  441,  446,  1466 

V.  Seely  103 

Dean  v.  Coddington  1467 

V.  De  Lezardi  563 

•  V.  Holly  1710 

V.  Nelson  1800 

V.  Phillips  1694 

Dearborn  I'.  Deai-born  389,1289 

V.  Taylor  808 

Deare  Vi  Carr  953 

Dearing  v.  Watkins  481 

Deas  I'.  Tliorne  1233 

De  Bouchout  v.  Goldsmid  129 

De  Butts  i?.  Bacon  1493 

De  Camp  v.  Crane  250 

Decker  v.  Clarke  471 

V.  Leonard  244,  808 

De  Cottes  v.  Jeffers  930,  1434 

Deering  v.  Boyle  112 

Deeter  r.  Crossley  990 

De  Forest  v.  Farley  1351,  1616 

V.  Holura  207,  210 

V.  Houcrli  920 

De  France  v.  De  France  312,  327,  330 

De  Grant  v.  Grahan  1567 

De  Groot  i'.  McCotter  1 1 79 

De  Haven  v.  Landell  1G54 

Deibler  v.  Barwick  191,  212 

Deitrech  v.  Lang  14G2 

De  Jarnette  v.  De  Giverville         1792, 

1800 

Dela  V.  Stanwood  1124,  1240 

Delabare  v.  Norwood  1439 

Delabigarre  i'.  Bush  1351 

Delahay  v.  Clement  27 

V.  McConnell  1661 

Delaire  v.  Keenan  163 

Deland  v.  Mershon  1226,  1434 

Delano  v.  Wilde  665 

Delaplaine  v.  Hitchcock  1229 

V.  Lewis    1397,  1401,  1407, 

1494 

Delassus  f.  Boston  191 

Delaware  Bank  v.  Jarvis  1426 

De  Leon  v.  Higuera    60,  G5,  166,  140G 

De  Leuw  v.  Neely  1597 

Demarest  v.  Berry  1121,   1458 

V.  Wyncoop    113,  114,  1144 

1151,  1158,  1195,  1751, 

1785,  1897 

Deming  v.  Comings     1077, 1243,  1258, 

1266,  1269 

V.  State  619 

De  Mott  I!.  Benson  346 


Dempsey  v.  Bush 
Den  V.  Baldwin 

V.  Demon 

V.  Roberts 

V.  Stockton 

V.  Vanness 

V.  Wade 

V.  AVatkins 

V.  Wright 
De  Nichols  v.  Saunders 
Denning  v.  Smith 
Dennis  v.  Burritt 

V.  Hemingway 
Dennison  v.  Allen 
Denniston  v.  Potts 
Denny  v.  Dana 
V.  Graeter 
V.  Steakley 
Denston  v.  Morris 


1687 

683 

973 

544 

702 

848,  1305 

509 

544 

716 

773 

1672 

557 

1223,  1342 

1355 

1420 

110 

1334,  1577 

198,  207 

1502 


Denton  v.  Manny        1067,  1420,  1G93 
Depau  V.  Humphreys  659 

Depew  V.  Dewey  1669,  1674 

De  Peyster  v.  Hasbrouck  97 

Derby  Bank  v.  Landon  950,  1567 

Deroin  v.  Jennings  305 

De  Ruyter  v.  Trustees  of  St.  Pe- 
ter's Church  1400 
Desloge  v.  Ranger  279 
Despard  v.  Walbridge  309 
De  St.  Romes  v.  Blanc  1008 
Detillin  v.  Gale  1602 
Detroit  F.  &  M.  Ins.  Co.  v.  Renz 

1342,  1638 
Deuster  v.  McCamus       562,  722,  723, 

982 

De  Yendal  v.  Malone  481 

Devens  i;.  Bower         1273,1287,1294 

Dewey  v.  Brown  1283 

V.  Latson  771 

V.  Van  Deusen  1288 

De  Wolf  V.  Johnson        660,  745,  1494 

V.  Strader  293,  337 

Dexter  v.  Arnold    1091,  1105,  1116, 

1124,  112G,  1144,  1158,  1171 

V.   Harris  872 

V.  Shepard      1838,  1873,  1874, 

1879,  1886,  1892 

Dey  V.  Dunham  546,  580 

De  Yampert  i'.  Brown  966 

Dias  1-.  Merle  1097,1100 

Dibblee  v.  Mitchell  207,  210 

Dibrell  ?;.  Carlisle  118 

V.  Smith  217 

Dick  V.  Balch  658 

r.  ]\Liwry  817 

V.  Truly  726 

Dicker  v.  Angerstein  1900 

XXXV 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Dickerman  v.  Burgess  1333 

Dickerson  v.  Powell  1331 

V.  Tillinghast  458 

Dickey  v.  Thompson  1620,  1626 

Dickinson  v.  Shee  1088 

Dickson  v.  Chorn  731,  982 

Diedricks  v.  Stronach  1321 

Dikeman  v.  Puckhafer  553 

Dill  V.  Bowen  105 

V.  Satterfield  1789 

Dillon  V.  Brown  800 

V.  Byrne  927 

Dills  V.  Jasper  1637,  1G48 

Dimon  v.  Bridges  1481 

V.  Dimon  813 

V.  Dunn  557,  1481 

Dingman  v.  Randall  927 

Dings  V.  Parsball  874,  894 

Dinsmore  v.  Racine,  &c.  R.  Co.        156 

Distilled  Spirits  586 

Dix  V.  Van  Wyck  644 

Dixfield  V.  Newton  808 

Dixon  u.  Clayville  1701 

V.  Cuyler  1331,  1414 

V.  Dixon  212 

V.  Ewart  1793 

V.  Gayfere  194,  198 

V.  Parker  284 

Dobbin  v.  Hewitt  657 

Dobson  V.  Land       409,  414,  420,  1135 

V.  Racey  1881 

Dodds  V.  Snyder  1621,  1622,  1632 

Dodge  V.  Brewer  900, 1080,  1053,  1916 

i;.  Crandall  1513 

V.  Evans  191,  192,  204 

V.  Potter  542,  553 

V.  Silvertborn        136,  176,  1698 

Doe  V.  Bank  of  Cleveland  513 

V.  Clifton  9 

V.  M'Loskey   352,  664,  804,  1228, 

1322,  1396 

V.  Surtees  1194 

V.  Tunnell  667 

V.  Vallejo  1464,  1575 

V.  Williams  1194 

Dole  V.  Tburlow  467,  500 

DoUabite  v.  Orne  235 

Dolman  v.  Cook     626,  660,  663,  1493, 

1498 
Domville  v.  Berrington  1636 

Donley  v.  Hays      821,  822,  1621,  1701 
Donnelly  v  Ruscb  1425 

V.  Simonton  37,  983 

Donnels  v.  Edwards  135,  704 

Donnington  v.  Meeker  647,  832 

Doody  V.  Pierce     886,  904,  1100,  1104 
Dooley  v.  Wolcott  600 

xxxvi 


Doolittle  V.  Cook 

V.  Jenkins 
i\  Lewis 


458,  562,  601 

196 

960,  1767,  1775, 

1785,  1786,  1897 

Dorkray  v.  Noble    787,  808,  896,  1088 

Dorr  V.  Peters  748,  751 

Dorrell  v.  Johnson  1273 

Dorsch  V.  Rosenthall  1469 

Dorsey  v.  Campbell  1663 

V.  Dorsey  1340,  1800 

Dos  well  V.  Adler  627 

ih  Buchanan  469 

Doten  V.  Hair  1251,  1276,  1285 

Doton  V.  Russell  22,  664,  889 

Doty  V.  VVbittlesley  1569 

Doub  V.  Barnes  644 

Doubleday  v.  Kress  791 

Dougherty  v.  Kecheval  674 

V.  McColgan    72,  257,  279, 

299,  1127 

Douglas  V.  Patrick  1088 

Douglass  V.  Bishop     1395,  1405,  1409, 

1680 

V.  Cline  1516 

V.  Culverwell  275 

V.  Darin  700 

V.  Durin  787,  809 

V.  McCrackin  599 

V.  Peele  558,  566,  567 

V.  Satterlee  959 

V.  Shumway  145 

V.  Souter  1414 

I'.  Woodworth  1052 

Dover.  Dove  1663 

Dover  v.  Kennerly       1873,  1903,  1912 

Dow  V.  Chamberlain  244,  1321 

V.Moor  1270 

Dowden  v.  Wilson  1469 

Do  we  V.  Schutt  641 

Dowling  V.  Hudson  1526 

Downard  v.  Groff  697,  780 

Downer  v.  Button  817 

V.  Fox  848,  878 

V.  Miller  967 

V.  Wilson  869 

Downes  y.  Grazebrook         1876,  1878, 

1883 

Downing  v.  Palmateer         1222,  1337, 

1563,  1711 

Dows  V.  Congdon  1076 

Doyle  V.  Coburn  1286 

V.  Howard  1829 

V.  Orr  205 

V.  Peerless  Petroleum  Co.       561 

V.  Stevens  557,  600 

V.  Teas  580 

V.  White  345,  356 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Drake  v.  Bray  1G29 

V.  Root  21 

Drane  y.  Gunter  1774 

Drape  v.  Charter  Oak  F.  Ins.  Co.  399 
Drai)er  v.  Jackson  135 

V.Mann  1215,1227 

Drayton  v.  Marshall  1194,  1414 

Drew  V.  Har man  1100,  1111 

V.  Lockett  881,  883 

V.Power  1143 

V.  Rust  848 

Drexel  v.  Miller  1355 

Driggs  V.  Sinison  974 

Drinan  v.  Nichols  1826 

Driver  v.  Hudspeth  224,  237 

Drummond    v.    Duke   of    St.    Al- 
bans 1 1 20 
V.  Richards  1225 
V.  Sant  1155 
Druryr.  Clark              1404,  1410,  1412, 

1473 

r.  Foster  83,  90 

V.  Morse  812,  1300 

V.  Tremont    Improvement 

Co.  748,  750,  766 

Drysdale  v.  Mace  595 

Dubois's  appeal  800 

Dubois  V.  Hull  194,  208,  210,  217,  219 

r.  Schaffer  970 

Duck  V.  Wilson  1218 

Ducker  v.  Belt  1439 

Ducland  v.  Housseau  32 

Dudley  v.  Bergen  970,  1498 

V.  Cadwell  22,  810,  813 

V.  Dickson  207 

V.  Grissler  1449 

V.  Matlack  191 

Duestcr  ?•.  Mc Camus  1631 

Duffy  w.  Calvert  1790 

v.  Ins.  Co.  114 

Dufphey  v.  Frenaye  532,  533 

Dugdale  V.  Robertson  1178 

Duke  V.  Balme  191,  208 

V.  Strickland  151 

Dunbar  v.  Starkey  665 

Duncan  v.  Dodd  1640 

V.  Drury  848 

V.  Helm  656,  657 

V.  Hodges  90 

V.  Smith  848,  870 

Duncombe  v.  Hansley  1098,  1414 

Dundas  v.  Bowler  823 

Dundee  Harbor  V.  Dougall  1203 

Dungan  V.  Am.  &c.  L.  Ins  Co.        515, 

544 

Dunham  v.  Dey  580,  594 

V.Jackson  1107 


Dunham  v.  Minard  915 

V.  Railway  Co.    152,  154,  859 

Dunklee  v.  Adams  395 

Dunkley  v.  Van  Buren      72,  950,  1711 

Dunlap  V.  Burnett  209 

V.  Wilson  1061,  1395 

V.  Wiseman         651,  653,  1141 

Dunn  V.  Raley  168 

V.  Rodgers  748,  1333 

V.  Seymour  842 

Dunning  v.  Ocean  Nat.  Bank       1695, 

1931 
Dunshee  v.  Parmelee  924 

Dunstan  v.  Patterson  863 

Dunwell  v.  Bidwell  461 

Durette  v.  Briggs  207 

Durgin  v.  Busfield  823 

Durkee  V.  Stringham  136,  176 

Durnell  v.  Sterstegge  1454 

Durrett  v.  Whiting  1586 

Duryee  v.  Linsheimer  1505 

Dusenbury  v.  Hulburt  539,  568 

Dutton  v.'lves  478,  834,  848 

V.  N.  Eng.  Mut.  Fire  Ins. 

Co.  422 

V.  Warschauer  20 

Duty  V.  Graham  1207,  1214 

Duval  V.  Covenhoven  533 

V.  McLoskey  18 

V.  P.  &  M.  Bank  712 

Duval's  appeal  129 

Duvall  V.  Speed  1648 

Dwen  V.  Blake  172,  262,  266,  293, 

335,  337 
Dwightv.  Phillips       1667,  1751,  1893, 

1905 

V.  Webster  76,  1471 

Dwinel  V.  Perley  787,817 

Dye  V.  Mann  881,  1188,  1472 

Dyer  v.  Clark  123 

V.  Homer  629 

V.  Martin  191 

V.  Shurtleff  1821,  1844,  1878 

V.  Tootbaker  889 

Dyett  V.  Pendleton  1502 


E. 


Eacho  V.  Cosby  353 

Easle  Beneficial  Society's  appeal    901 
Eagle  F.  Ins.  Co.  v.  Cammet  1401 

Eao-le  Ins.  Co.  v.  Lent  1439,  1440, 

1589 
V.  Pell    929,  1080,  1134 
Ean^le  Woollen  Mills  Co.  v.  Mon- 
teith  128 

xxxvii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Earlu.  Clute  GIG 

Earl  of  Clarendon  v.  Barham  857 

Earl  of  Cork  v.  Russell  1436 

Earl  of  Jersey   v.    Briton    Ferry 

Floating  Dock  Co.  198 

Earl  of  Macclesfield  v.  Fitton         1418 
Earl  of  Oxford  i\  Albemarle  129 

Earl  Vane  v.  Regden  17GG 

East  Boston,  &c.  R.  Co.  v.  East- 
ern R.  Co.  124 
East  Boston,  &c.  R.  Co.  v.  Hub- 
bard                                                 124 
Eastbnrn  v.  Kii'k                                1G03 
East  India  Co.  v.  Atkyns      1039,  1042 
Eastman  v.  Batcbelder               388,  392 
V.  Foster            387,  726,  822, 
881,  1204 
V.  Turman                          1433 
Easton  v.  Pickersgill                         1G49 
Eaton  V.  Copeland                              991 
V.  Green                   244,  300,  325 
V.  Jaques                             12,  785 
V.  Nason  114 
V.  Simonds           666,  1067,  1132 
V.  Tallmadge                             680 
V.  Wbite  138 
V.  Whiting      62,  244,  271,  664, 
701,  938,  1767 
Eaves  v.  Estes                            431,  436 
Eccleston  v.  Clipsham                        356 
Eckerson  v.  Vollmer                         1420 
Eddy  V.  Smith                                    1935 
V.  Traver                                    879 
Edgell  V.  Standfords     805,  1295,  1361 
Edgerton  i-.  McRea                          1095 
V.  Young           817,  820,  848, 
1512, 1567 
Edmands  v.  Mut.  Safety  Fire  Ins. 

Co.  426 

Edmondson  v.  Welsh  1636 

Edrington  v.  Harper  244,  258 

Edsell  V.  Buchanan  116G,  1173 

P>]son  I.-.  Munsell  1193 

Edwards  v.  Bodine  1500,  1502 

V.  Edwards  220,  221 

V.  Farmers'  Fire  Ins.  & 

Loan  Co.  6  74,  893 

V.  Sanders  1636 

V.  Thompson  1512 

V.  Trumbull  187 

Edwards'  Estate,  re  1043 

Ege  V.  Watts  906 

Ehle  V.  Brown  1412 

Ehleringer  v.  Moriarty  1652 

Eichelberger  v.  Harrison  1340 

Eiland  v.  Radford  324 

Eitel  V.  Bracken  631,  645 

xxxviii 


Elder  v.  Rouse 

1225 

Eldridge  v.  Smith 

161 

Elfe  V.  Cole 

26 

Elias  V.  Verdugo 

1579 

Elkins  V.  Edwards 

1204 

Ellerhorst,  in  re 

1235,  1926 

Ellett  V.  Butt 

151 

Elliot  V.  Edwards 

210 

V.  Patton 

1099 

V.  Sleeper 

924,  932 

Elliott  V.  Blair 

924 

V.  INIaxwell 

275,  310 

V.  Pell 

1589 

V.  Wood    340,  146,  1751,  1799, 

1828,  1863,  1882,  1883,  1898 

Ellis  V.  Craig  1351 

V.  Drake  1257,  1258,  1260 

V.  Higgins  298 

I'.  Ilussey  45 

V.  Kenyon  114 

V.  Lamme  1699,  1702 

V.  Lindley  967 

V.  Martin  1188 

V.  Messervie  678,  842 

V.  Southwell  1687 

Ellison  V.  Daniels  42,  664,  808 

EUithorp  v.  Dewing  676 

Ells  V.  Sims  66 

Ellsworth  V.  Lockwood    792,  874,  882, 

1087,  1380,  1617,  1683, 

1858,  1906 

V.  Mitchell  930 

Elmer  v.  Loper  1130,  1132,  1140 

Elmore  v,  Higgins  1335 

Elwell  V.  Sha\v  130 

Ely  V.  Ely  420,  936,  1215,  1219 

V.  M'Guire  702 

V.  McXight  842 

V.  Perrine  1622 

V.  Scofield  472,  607,  957 

V.  Wilcox  536 

Emanuel  College  v.  Evans  6 

Emanuel  v.  Hunt  817 

Emeric  v.  Tamms  1462 

Emerson  v.  Atwater  301 

V.  Oilman  991 

Emery  v.  Owings  346 

V.  Piscataqua  F.  &  M.  Ins. 

Co.  405 

Emison  v.  Risque  191,  221 

V.  Whittlesey  210 

Emmons  v.  Hinderer  693 

V.  JNIurray  600 

Encking  w.  Simmons  1793,  1911 

England  v.  Codrington  284 

V.  Lewis  1324 

Engle  V.  Haines  1625 


TABLE   OF   CASES. 


Englo  V.  UnderhiU 
English  V.  Carney 
V.  Lane 
V.  Register 
V.  Koclie 
V.  Russell 
V.  Waplcs 


Reference  is  to  Sections. 

Eyester  i*.  GafF 


1223,  1351 

822,  1182 

28G 

1377 

65 

225 

575,  581 


Ennis  v.  Harmony  F.  Tns.  Co.   407,  408 
Ennor  v.  Thompson        293,  325,  326, 

1046 
Enos  V.    Sutherland        244,    251,  341, 

1099 
Enright  v.  Hubbard  1583 

Ensign  v.  Colburn  693 

Enston  v.  Friday  355,  934 

Ensworth  v.  Griffith  262 

V.  King  540 

V.  Lambert  1396 

Equitable  Life  Ins.  Co.  v.  Stevens 

1223,  1721 

Ercanbraek  v.  Rich  1457 

Erickson  r.  Rafferty  27,  1236 

Erskine  v.  Townsend  16,  244,  300, 

702,  886,  892,  1244,  1262,  1310 

Erwin  v.  Ferguson  1382,  1414 

V.  Shuey  81 

Eslava  v.  Lepretre  647,  652,  1420 

Estabrook  v.  Smith  735 

Esterly  v.  Purdy  346 

Estevez  v.  Purdy  642 

Etheridge  v.  Yernoy  1388,  1421 

Eubank  v.  Poston  212 

European  Bank,  re  589 

vans  V.  Elliott  777 

V.  Goodlet  198 

V.  Huffman  915 

V.  Jones  457,  1065,  1097 

I'.  Judkins  1088 

V.  Kimball  848 

V.  McGlasson  462 

t;.  Merriken  11 

V.  Meylert  13,  55 

V.  Norris  390 

V.  White  84 

Eveland  v.  AVheeler  974 

Everit  c.  Strong  800 

Everston  v.  Booth  817 

V.  Ogden  981 

Ewart  V.  L-wan  1179,  1355 

V.  Walling         244,  250,  273,  293 

Ewer  V.  Hobbs  35,  705 

Ewing  V.  Arthur  822,  1701 

r.  Shclton  990 

Excelsior  F.  Lis.  Co.  v.  Roval  Ins. 

Co.  of  Liverpool  419,  420,  1397 

Exchange  Bank  v.  Rice  762 

Exton  i;.  Scott  247 


21,  71,  1231,  1233, 

1438 

V.  Hatheway  626 

Eyler  v.  Crabbs  219 

Eyre  v.  Burneester  967 

V.  Sadlier  205 


Fackler  v.  Worth 
Faesi  i'.  Goetz 
Fair  v.  Brown 
Fairbank  v.  Cudworth 
Fairbanks  v.  Isham 
Fairfax  v.  Montague 
Fairfield  v.  McArthur 
Fairman  v.  Farmer 


1663 
1710 
680 
684 
1454 
1166 
1303 
1219 


Falls  V.  Conway   Mut.    Fire   Ins. 

Co.  252,  399,  1046 

Falkner  v.  Equitable  Reversionary 

Society  ..864 

V.  Folsom  1584 

Fall  V.  Evans  1569 

Fallass  v.  Pierce  575 

Fallon  t'.  Butler  717 

Fanning  v.  Dunham  1493 

V.  Kerr  1735 

Farebrother  v.  Wodehouse  884 

Farley  t'.  Eller  1734 

V.  Goocher  282 

Farlow  v.  Weildon  1640 

Farmer  u.  Curtis         1102,  1401,  1414 

V.  Grose        267,  268,  273,  277, 

288,  325 

Farmers'  Bank  v.  Clarke  1634 

V.  Douglass  827 

V,  Mut.  As.  So.       785, 

924 

Farmers'  Fire  Ins.  &  Loan  Co.  v. 

Edwards  889,  1093 

Farmers'   Loan    &    Trust    Co.    v. 

Gary  160 

Farmers'    Loan    &    Trust    Co.    v. 

Commercial  Bank  101,  156,  157 

Farmers'   Loan    &   Trust    Co.    v. 

Curtis  353 

Farmers'    Loan    &    Trust    Co.    r. 

Dickson  1412 

Farmers'    Loan    &    Trust    Co.    i'. 

Fisher  155 

Farmers'   Loan    &    Trust    Co.    v. 

Hendrickson  452 

Farmers'    I^oan    &   Trust    Co.    v. 

Hughes  1774 

Farmers'    Loan   &   Trust   Co.    i". 
Maltby  561,  576,  600,  1621 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Farmers'    Loan    &   Trust   Co.    v. 

Millard  1708 

Farmers'    Loan    &    Trust    Co.    v. 

Reid  1511 

Farmers'    Loan    &    Trust    Co.    v. 

Walworth  957 

Farmers'   &   Mechanics'  Bank    v. 

Bronson  1440 

Farmers'   &  Mechanics'   Bank   v. 

Kimmel  1493 

Farmers',  &c.  Bank  v.  Drury  540 

?;.  Luther  1618 

Farnham  c.  Mallory  ]  709 

Farnum  v.  Burnett  364,  613 

V.  Metcalf  1055 

Farrant  v.  Lovel  1116 

Farrar  v.  Chauffetete  444 

V.  Fessenden  1243 

V.  Payne  1876,  1922 

Farrell  v.  Bean  299 

V.  Parlier  1333,  1545,  1561 

Farrow  v.  Commonwealth  Ins.  Co.  408 

Farwell  v.  Cotting  866 

V.  Murphy  1048,  1395 

r.  Sturdevant  1085 

Fassett  v.  Smith      365,  374,  382,  966, 

967 

Faulkener  v.  Daniel  1525 

Faulkner  v.  Brockenborough  55 

V.  Overturf  1465 

Faulks  V.  Dimock  850 

Faure  v.  Winans  358,  414,  1080,  1135, 

1596,  1597,  1683 

Fausel  v.  Schabel  "1189 

Fawell  V.  Heelis  189,  202 

Faxon  v.  Folvey  623 

Faxton  v.  Faxton  1189 

Fay  V.  Brewer  687,  702 

v.  Cheney  664,  702,  1248 

V.  Love  joy  1493 

V.  Valentine  603,  1049,  1088, 

1253,  1262,  1273 

Fay's  Digest  1022 

Febeiger  v.  Craighead  665 

Fee  ?'.  Cobine  279 

Feldman  v.  Gamble   613,  620,  622,  629 

Fell  V.  Brown  1102,  1401,  1414 

Fellowes  v.  Clay  1193 

Felter  v.  Cirode  380 

Felton  r.  Brooks  417 

Fennerv.  Tucker       1840,  1845,  1852, 

1912 
Fenno  v.  Sayre  173 

Fen  wick  v.  Reed  1153 

Fergus  v.  Woodworth  1653,  1662,  1669 
Ferguson  v.  Ferouson  1351 

V.  Kimball  1621,  1776 

xl 


Ferguson  v.  Miller 

242,  609 

V.  Smith 

1420 

V.  Wagner 

1088 

Ferrand  r.  Clay 

1911 

Ferris  i'.  Crawford 

644,  1380 

V.  Ferris 

76,  1185 

V.  Hendrickson 

814 

Ferry  v.  George 

235 

Fessler's  appeal 

172,  312,  374 

Fetrow  v.  Merriwether 

1175 

Fewell  V.  Kessler 

943 

Fickes  v.  Erseck 

1333,  1355 

Fiedler  v.  Carpenter 

1293 

V.  Darrin      266,  309,  339,  639 

V.  Varner  99,  1493,  1706,  1935 

Field  V.  Gooding  1741,  1888,  1904 

V.  Hawxhurst  1457,  1690 

V.  Swan  777 

V.  Wilson  1145,  1193 

Fifield  V.  Sperry  1248 

Finch  V.  Brown  1140 

V.  Houghton  919 

V.  Newnham  1062 

V.  AVinchelsea  460,  462 

Findlay  i\  Hosmer  950 

Finley  v.  Bank  of  United  States    1439 

V.  Simpson  752,  762 

Finnagan  v.  Manchester  1444 

Firemans',  &c.  v.  Bay  113 

First  Nat.  Bank  v.  Peck  76,  1183 

First  Nat.  Bank  of  Canandaigua 

V.  Garlinghouse  111 

First  Nat.  Bank  of  Patterson  v. 

Byard  380 

First  Nat.  Bank  of  Sioux  City  v. 

Gage  1516 

First  Nat.  Bank  of  Tama  City  v. 

Hayzlett  462 

Fish  V.  Fish  701 

V.  French  841 

V.  Gordon  867 

V.  Rowland  207 

Fisher  v.  Beckwith  84,  619 

V.  Dillon  878 

V.  Dixon  441,  451 

V.  Johnson  193,  212 

V.  Meister  612 

V.  Mossman  1204 

V.  Otis  367,  659,  814,  817,  8.34, 

836,  904,  1487 

V.  Shaw  1267 

V.  Tunnard  497 

Fisher  on  Mortgages  1178 

Fish  wick  v.  Lowe  1401 

Fisk  r.  Potter  191,199,203 

Fiske  V.  Fiske  391,  1310 

I'.  Mc Gregory  861 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Fitch  V.  Coit  1567 

V.  Cotheal  114,  865 

V.  Pinckard  27 

Fitchbur^h  Cotton  Manuf.  Co.  v. 

Mel  veil  771,  774 

Fithian  v.  Corwin  870 

V.  Monks  1345 

Fitts  V.  Davis  466 

Fitzgerald  v.  Beebe  19 

,  V.  Fauconberg  586 

V.  Forristal  1333 

Fitzhugh  V.  McPlierson  652,  1390 

V.  Smith  1  72 

Fitzpatrick  v.  Fitzpatrick    1840,  1843 

Fitzsiraons  i».  Baum  639 

Flachs  V.  Kelly  878 

Fladland  i\  Delaplaine  5  7 

Fiagg  V.  Flagg  668,  702 

V.  Mann  168,  241,  244,  257,  262, 

265,   266,  272,  285,  300,   325, 

358 

V.  Thurber  751 

Flanagan  v.  Westcott  676,  936 

Flanders  v.  Lamphear    388,  389,  391, 

668 

V.  O'Brien  99 

Fleming  v.  Burgin  512,  573 

V.  Parry  984 

V.  Sittoa         1352,  1552,  1711 

Fletcher  v.  Gary         1253,  1258,  1273, 

1276,  1287 

V.  Holmes         28,  1421,  1715, 

1720 

V.  Ilutchinsons  1323 

Flint  r.  Clinton  Co.  1780 

V.  Sheldon  244,  272,  300 

Flower  v.  Elwood    913,  924,  926,  928, 

980,  1789,  1799,  1938 

Floyd  Co.  V.  Morrison       622,  631,  682 

Flynn  v.  Powers  104,  116 

Flvnt  V.  Arnold  574 

Fobes  V.  Cantfield  651 

Fogal  I'.  Pirro     715,  1070,  1074,  1128, 

1160 
Fogarty  v.  Sawyer  20,  1709,  1725, 

1773,  1861 
Fogg  V.  Middlesex  Mut.  Fire  Ins. 

Co.  42  7 

V.  Rogers  232 

Foley  f.  Howard  84,539 

Follett  V.  Heath  350 

V.  Reese  207 

Folsom  V.  Belknap  Co.  Mut.  Fire 

Ins.  Co.  422 

Fonda  v.  Jones  207,  210 

Foote  V.  Lathrop  1420 

V.  Sprague  635,  1477,  1606 


Forbes  v.  Deniston  570 

u.  Moflat  848,  870 
V.  San  Rafael  Turnpike  Co. 

127 

Ford  V.  Aver  1 208 

V.  Cobb  431,  445 

V.  Heely  1810 

V.  Irwiii  261,  326 

V.  Olden  711,  1876 

V.  Russell  1744 

V.  Smith  191,  219 

V.  Sutherlin  150 

V.  White  5  71 

Fordham  y.  Wallis  1173 

Forepaugh  v.  Appold  496,  572 

Forstall  v.  Blanchard  907 

Forster  v.  Hoggart  1810,  1824 

V.  Mellen  889 

V,  Thompson  1172 

Forston  v.  Caldwell  1359 

Forsyth  w.  Rowell  1229 

Fort  V.  Burch   472,  475,  572,  580,  583, 

1653 

Fortier  v.  Darst  838 

Fortman  v.  Goepper  445 

Fosdick  V.  Barr  463,  467 

V.  Gooding  1292 

Foss  V.  Hildreth  1310 

Foster  v.  Beals  791 

V.  Beardsley  Scythe  Co.        541 

V.  Equitable   Mut.  F.   Ins. 

Co.  421,  427 

V.  Harvey  1572 

V.  Hickox  1420,  1421 

I'.  Hodgson  1173 

V.  Hughes  1447 

V.  Potter  1929 

V.  Reynolds  374,  376,  1804 

V.  Van  Reed  412,  418 

Foster's  appeal  123,465,515 

Fowle  V.  Merrill  1853 

Fowler  v.  Barksdale  1628 

V.  Bush  926 

V.  Fay  740,  748 

V.  Palmer  1135 

V.  Rust  208 

Fowley  v.  Palmer  409,  414,  420 

Fox  V.  Lipe  634,  715 

V.  Mackreth  1878 

V.  Pratt  1693 

V.  Willis  710 

Frail  v.  Ellis  210 

Frame  i>.  Bell  1334 

Francis  v.  Church  16  76 

V.  Porter  28,  1187,  1188 

V.  Wells  191,  214 

Fran cklyn  u.  Fern  1069 

xli 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Frankland  v.  Moulton 

433,  445,  446 

Frost  V.  Frost 

1408 

Franklin  ?'.  Cannon 

542,  924 

V.  Koon    982,  1439,  1440,  1473, 

V.  Gorliam 

356,  1072 

1589 

V.  Greene 

1875 

V.  Peacock 

1691 

V.  Osgood 

1790 

V.  Shaw 

676,  745 

V.  Thurston 

1334 

V.  Yonkers  Sav. 

Bank  893,  894, 

V.  Twogood 

682 

900, 1087 

V.  Van  Cott 

1685,  1686 

Frothingham  v.  March 

1838 

Fraser  v.  Pendlebury 

903,  1085 

V.  McKuslck                689 

Fray  v.  Drew 

1059 

Fry  V.  Hamner 

117 

Frazee  i\  Inslee 

605 

V.  Sheehee 

584 

Frear  V.  Drinker 

915,  1355 

Fryatt  v.  Sullivan  Co. 

446 

Frederick  v.  Devol 

438 

Frye  v.  Bank  of  111. 

364,  368.  955 

Freeby  v.  Tiipper 

1229 

Fryer  v.  Rockefeller 

537,  1457,  1645, 

Freeland  v.  Freeland  1296 

1297,  1309 

1646 

Freeman  i\  Atwood 

1263 

Fuhrman  v.  London 

534 

V.  Auld      378, 

595,  740,  744, 

Fullam  V.  Stearns 

435,  442 

1491,  1494 

Fuller  V.  Bennett 

584,  586,  688 

V.  Baldwin 

244 

V.  Bradley 

705 

V.  M'Gaw 

859 

V.  Cunningham 

543 

V.  Munns 

1681 

V.  Hodgdon 

680 

V.  Paul 

870 

V.  Parrish 

301 

V.  Peay 

84,  539 

V.  Pratt 

244 

V.  Schroeder 

539,  608,  1688 

r.  Russell 

1262 

V.  Scofield 

1382,  1383 

V.  Van  Geesen 

1351,  1653 

V.  Wilson  113 

118,  275,  279, 

Fulthorpe  v.  Foster 

1153 

303,  324 

Fulton  V.  Moore 

1613 

Freeman's  Bank  v.  Vose 

69 

Fulton  Bank  v.  N.  Y 

&c.  Canal 

Freeson  v.  Bissell 

240 

Co. 

589 

Freiber  v.  Shaffer 

1577 

Funk  V.  McReynold 

606,  880,  1699 

Frelinghuysen  v.  Golden 

1516,  1663 

Furbish  v.  Sears 

390,  1287 

French  v.  Baron 

1132 

Furbush  v.  Goodwin  4 

2,  702,  808,  946 

V.  Burns 

289,  340 

Furlong  v.  Randall 

1105 

V.  Griffin 

98,  1464 

Furman  v.  Meeker 

1506 

V.  Kennedy 

1139 

Furnas  v.  Dui-gin 

769,  770,  1263 

V.  Lovejoy 

120 

V.  Lynn 

289 

V.  New 

1477 

G. 

17.  Sturdevant 

2 

14,  265,  275 

V.  Turner 

81 

7,831,  1427 

Gafford  V.  Stearns 

458 

Frey  v.  Vanderhoof 

861,865 

Gage  V.  Brewster         1075,  1084,  1113 

Freytag  v.  Hoeland 

335, 1116 

V.  Stafford 

1374 

Friedly  i'.  Hamilton  244 

,  253,  312,  548 

Gahn  v.  Neimcewicz 

114,  942 

Frieze  v.  Chapin 

1807,  1811 

Gaines  v.  Allen 

1781,  1882 

Frink  v.  Branch             348, 

1456,  1594 

V.  Walker 

1396,  1436 

V.  Hampden  Ins. 

Co 

408 

Gale  V.  Battin 

808 

V.  Le  Roy 

20,  1152 

V.  Ward 

435,  444 

V.  Murphy 

1074 

Gallagher  v.  Egan 

1603, 1604 

V.  Thompson 

1751,  1904 

V.  Mars 

191,  195 

Frisbie  v.  Bateman 

1520 

Galloway  v.  Litchfield 

990 

V.  Fogarty 

1653 

Gait  V.  Jackson 

265,  268 

V.  Thayer 

14 

Galveston  R.  Co.  v.  Co 

wdrev  152,  154, 

Fi'ische  v.  Kramer        673, 

1395,  1654, 

608 

1678 

Gambril  v.  Rose 

635 

Frizzle  v.  Dearth 

1541 

Gamut  V.  Gregg 

1546 

Frost  V.  Beekman 

550 

Gann  v.  Chester 

201 

V.  Bevins 

1617 

Garber  v.  Henry 

365 

xlii 


TABLE   OF  CASES. 


Reference  is  to  Sections. 


Garden  v.  Inpjram 

400 

Gerry  v.  Post 

1585 

Gardinei'  v.  Gcrrish 

825 

Gest  V.  Flock 

1647 

V.  Seller merhorn 

1673 

Geyer  v.  Girard 

68 

r.  Woodmansee 

74 

Gibbs  V.  Marsh 

1790 

Gardner  v.  Armstrong 

1903 

V.  Penny 

316,  329 

V.  Astor 

848 

,  855 

Gibson  V.  Bailey 

12-48,  1258 

V.  Barnes 

1934 

V.  Crehore 

848 

866,  10G3, 

V.  Brown 

619 

1067,  1090, 

1133, 

1139,  1140 

V.  Diedericlis 

356, 

1699 

V.  Eller 

274 

V.  Emerson  361,  564,  730 

V.  Finley  144,436,  1657 

V.  Gardner  109 

V.  Heartt  696 

V.  James  913,  943,  944 

V.  Moore  82,  532 

V.  Otrden  1878 

V.  Webber  379 

V.  Weston  295 

Garforth  v.  Bradley  1215 

Garland  v.  Richeson  813 

Garlock  v.  Geortner  913 

G.irnsev  v.  Rogers  735,  756,  757 

Garr  V.' Bright  1603 

Garretson  r.  Cole  1663 

Garrett  v.  Puckett         595,  1373,  1377 

Garroc  v.  Sherman  807 

Garson  t?.  Green  192,198 

Garstone  v.  Edwards  1640 

Garth  v.  Cotton  685 

V.  Ward  1411 

Gary  v.  May  1204 

Gaskell  V.  Durdin  1373,  1411 

Gaskill  V.  Sine  1620,  1621,  1631 

Gaston  v.  White  239 

Gault  V.  McGrath  382,  930 

Gausen  r.  Tomlinson  566 

Gay  I'.  Hamilton  248,  277,  288 

Gayle  v.  Fattle  1740 

Gedye  f.  Matson  883,1432 

Gelpeke  v.  City  of   Dubuque         653, 

1141 
Gelston  V.  Burr  669 

V.  Thompson  1119 

General  Ins.  Co.  v.  United  States 

Ins.  Co.  469 

Gentis  v.  Blascoe  1338 

George  v.  Arthur  1751,  1838 

V.  Baker  796,  1251,  1285 

V.  Kent     579,  593,  595,  1092, 

1621 

V.  Wood  562,  723,  1074,  1621, 

1631 

George's  Creek  Coal  &  Iron  Co.  v. 

Dehnold  34,  667 

Gerrish  v.  Black         1105,  1106,  1112, 

1122,  1133,  124  7 

V.  Mason  720,  1256 


t'.  Farley  771 

V.  Jones  1822,  18.30 

V  McCormick  982 

V.  Miln  957 

V.  Seymour  343 

V.  Taylor  391 

V.  Warden  1231 

Giddings  v.  Crosby  1359 

V.  Sears  627 

V.  Seavers  403 

V.  Seward  964 

Giffard  v.  Hort  1401 

Gifford  v.  Workman  1403 

Gilbert  v.  Anthony  90 

V.  Averill  558,  740 

V.  Cooley  1678,  1902 

r.  Holmes  617,618 

V.  Maggord  1333 

u.  Pen'n  136 

r.  Priest  1232 

Gilchrist  v.  Patterson  19 

Giles  V.  Baremore  915,  1195 

V.  Hartis  893 

Gill  I'.  Clark  168 

V.  Lyon  1092 

V.  Pinney  70,  352,  545 

Gillespie  v.  Cammack  497 

V.  Lovell  1336 

V.  Moon  529,  1464 

V.  Smith  ,      1859 

Gillett  V.  Balcolm  697,  1174,  1471, 

1658 

V.  Eaton       57,  716,  1654,  1G78 

Gillig  V.  Maass  474,  608,  851 

Gillis  V.  Martin  271,  1128 

Gilmanr.  Brown       191,  192,  219,  223 

V.  111.  &  Miss.  Tel.  Co.  670,  1215 

V.  Moody  70,  606,  607 

V.  Wills     675,  697,  1116,  1120 

Gilmore  v.  Ferguson  1606 

Gilson  V.  Gilson        135,  166,  393,  794, 

958,  1283 

Gil  well  V.  Kellogg  1507 

Gimbel  v.  Pignero  1772 

Givan  v.  Tout           '  "                      787 

Given  V.  Marr  848,  855 

Givens  u.  McCalmot  1116 

Gladding  y.  Warner  1140 

xliii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Gladwyn  v,  Hitchman 
Glass  V.  Ellison 
V.  Hulbert 
V.  Warwick 
Glasscott  V.  Day 
Gleason  v.  Burke 
Gleises  v.  Maignan 
Glendeninq;  v.  Jolinston 
Glenn  v.  Whipple 
Gliddin  v.  Hunt 
Gliddon  v.  Andrews 
Glison  V.  Hill 


1174, 1177 

11,  664 

300,  322 

112 

1088 

639 

1381 

247 

1500,  1502 

574,  841 

1072,  1442 

310 


Globe  Ins.  Co.  v.  Lansing  1228 

Glo'ver  V.  Payn  262,  265,  275,  27t) 

Gochenour  v.  Mowry      .  679 

Goddard  v.  Coe  69,  242 

V.   Sawyer         352,  365,  380, 

661^662 

V.  Selden  1567 

GodefFroy  v.  Caldwell  842 

Godfrey  v.  Watson  1132,  1137 

Godwin  v.  Richardson  135 

Goelet  V.  McManus  574 

Goenen  v.  Schroeder     930,  1051,  1511 

Golcher  v.  Brisbin        1193,  1850,  1904 

Goldsmid  v.  Stonehewer  1397 

Goldsmith  t'.  Brown  1713 

V.  Osborne  167,  1614 

1866,  1876,  1921 

Goninan  v.  Stephenson  828 

Good  ale  v.  Wheeler  1854 

Goodall  V.  Mopley  1378,  1435 

Goodall's  case  6 

Goode  V.  Comfort  1859,  1866 

V.  Job  1170 

Goodenow  v.  Curtis  95 

V.  Ewer  20,  953,  1543, 

1558,  1589,  1679 

Goodhue  V.  Berrien        353,  368 

Gooding  I'.  Shea  455,  695 

Goodman  v.  Cin.  &  Chicago  R.  Co. 

1176,  1181 

V.  GriersoQ         258,  264,  280 

V.  Kine  684 

V.  White      1048,  1057,  1395, 

1396,  1558 

Goodsell  V.  Stinson  85,  539 

Good-title  v.  No-title  9 

Goodwin  V.  Richardson    664,  702,  704, 

958 
Gordon  v.  Bell  191,  204,  222 

V.  Graham  365,  371 

V.  Hobart  639,  1116 

V.  Lewis  1124,  1139,  1244 

V.  Manning  197 

V.  Mass.  F.  &  Marine  Ins. 

Co.  398 

xliv 


Gordon  v.  Mulhare  814,  962 

V.  Preston  129,  134,  348 

V.  Saunders  1643 

?;.  Wai'e   Savings   Bank      410, 

910 

Gore  V.  Jenness  689 

V.  Stackpoole  1401 

Gorham  v.  Arnold  36 

Goring  v.  Shreve  1229,  1698 

Goss  V.  Pilgrim  1359 

V.  Singleton  1790 

Gossin  V.  Brown  881 

Gossom  V.  Donaldson  1662 

Gothard  v.  Flynn  185 

Gould?;.  Libby  1670,  1671,  1676,1680 

V.  Marsh  834 

V.  Mortimer  1668,  1669 

V.  Newman    787,  789,  817,  1281 

tj.  Tancred  1140 

V.  White  915,  1269 

Goulding  v.  Bunster  268,  842,  945 

Gouverneur  v.  Lynch  1624 

Gowan  V.  Jones  1637 

Gower  v.  Carter  1606 

V.  Howe  813,  1377,  1427 

U.Winchester  1048,1160, 

1207,  1425 

Grable  v.  McCulloh  28 

Grace  v.  Hunt  1444 

V.  Mercer  665 

Graeme  u.  Cullen  428,1778,1790 

Grafton  Bank  v.  Doe  729 

Graham  v.  Anderson  538 

V.  Berryman  1464 

r.  Bleakie      1449,1575,1587, 

1643,  1648 

V.  Carter  1414,  1418 

V.  Holt  90 

V.  King         1467,  1862 

V.  Linden     893,  894,  1088 

r.  Mc Campbell  173 

V.  Newman  817 

V.  Stevens  31  7 

V.  Vining  1214 

Grandin  v.  Anderson  557 

Grant  v.  Bissett  •  558 

V.  Dodge  466 

V.   Duane    1055,  1059,  1069, 

1399 

V.  Galway  1284,  1293 

V.  Ludlow  874,  1187 

V.  Tallman  1506 

V.  U.  S.  Bank  569,  1082 

V.  Van  Dercook  1475 

Grantham  v.  Hawley  150 

Grapengether  v.  Fejervary      191,  822, 

1678, 1700 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Grattant'.  WigL,nns       822,  1074,  1146, 
1181,  1388,'  1458,  1509,  1577,  1700 
Graves  c.  Hampden  Fire  Ins.  Co. 

409,  1136 

V.  Ward  496 

Gray  v.  Brignnrdello  1662 

V.  Franklin  1324 

V.  Jenks  889 

V.  Scbenck  828 

V.  Shaw  1854,  1859 

V.  Smith  136 

V.  Stiver  66 

V.  Veirs  1614 

Graydon  v.  Church  881 

Great  Falls  Co.  v.  Worster         42,  699 

Green  v.  Butler  711,  977,  1046 

V.  Crockett  1552,  1573 

V.  Cross     950,  1248,  1269,  1278, 

1825 

V.  Davis  1243 

V.  Demoss  202,  212 

V.  Dixon  1048,  1105,  1128, 

1395,  1406,  1412 

V.  Garrington  553 

V.  Hart  813,  817,  837 

V.  Kemp  644,  702 

V.  Marble  1372 

V.  Nichols  1173 

V.  Pettino;ill  1254 

V.  Fhillips  444 

V.  Ramage  725,  1621 

V.  Scrannage  114 

V.  Slayter  595 

V.  Storm  917 

V.  Tanner  1081 

V.  Turner   295,  736,  1146,  1152, 

1159, 1257 

V.  Westcott       nil,  1128,  1139, 

1140 

V.  Wynn  1068 

Greene  v.  Cook  226 

I'.  Deal  666 

V.  Dixon  1074 

V.  Harris  1094 

V.  Tyler  644,  912,  1493 

V.  Wai'wick  566,  844 

Greenleaf  ;;.  Edes  462 

V.  Queen  1790 

Greenman  v.  Pattison  1181 

Greensdale  i'.  Dare  604 

Greenwood  v.  Murdock  142 

Gregory  v.  Campbell  1467,  1616 

V.  Clarke  1849 

t'.  Purdue  1616 

r.  Thomas  927,  929 

Greither  v.  Alexander     736,  744,  1494 

Grellett  v.  Heilshorn  508 


Groswold  V.  Marshan 

1624 

Greve  v.  Cofiin 

808 

Greville  f.  Fleming 

1519 

Grey  v.  Jenks 

719 

Griffin  v.  Burtnett 

370 

V.  Cranston 

353 

V.  Gridin 

186,  662 

V.  Lovell 

889 

V.  Marine  Co.  of  Chicago    146, 
1863,  1874, 1876, 1883 

V.  New  Jersey,  &c.  Co.  374, 1493 
Griffith  V.  Griffith  591 

V.  Hadley  li372 

Griffiths,  re  381 

Gri^rby  V.  Cox  107 

(iriggs  V.  Detroit,  &c.  R.  Co.  921 

Griggsby  v.  Hair  212 

Griiton  v.  McDonald  198 

Grimes  v.  Doe  702 

V.  Kimball    913,  926,  966,  967, 
1295,  1299 

V.  Rose  151 

Grimstone  i\  Carter  546 

Grissler  v.  Powers  1485,  1491 

Griswold  V.  Fowler  1617,  1858 

V.  Griswold  9  74 

V.  Mather  22,  1569 

r.  Miller  1411 

Grob  V.  Cushman  1333 

Groff  ?;.  Morehouse  1751 

Gronfier  v.  Minturn  1606 

Grooms  v.  Rust  316 

Gross  V.  McKee  624 

Grosvenor   v.  Atlantic   Fire   Ins. 

Co.  of  Brooklyn  406,  407,  408 

Grosvenor  v.  Day        1223,  1351,  1678, 

1751 
Grove  v.  Miles  226,  234 

Grover  v.  Flye  886,  889 

V.  Thatcher  811,  848,  868,  981 
Crowning  v.  Bchn  200 

Grugeon  v.  Gerrard     1112,  1450,  1799 
Grussy  v.  Schneider  896,  901 

Gubbings  v.  Harper  248 

Gudderette  v.  Smyth  534 

Gudger  w.  Barnes  237,  1148 

Gnerin  v.  Danforth  1331 

(luesnard  v.  Soulie  1008 

Guest  r.  Byington  1335,1511 

Guflin  V.  Marine  Co.  of  Chicago 

1876 
Guinn  v.  Locke  315,  332 

Guion  V.  Kuapp    593,  722,  982,  1621, 

1631 
Gunn  V.  Brantley  1144,  1193 

Gunnell  v.  Cockerill  1913 

Gunnison  v.  Gregg  644,  1493 

xlv 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Gunter  v.  Gimter  857 

Guthrie  v.  Jones  441 

V.  Kable,  244,  312,  691 

V.  Sorrell  1099 

Guy  V.  Carriere  466 

V.  Da  Uprey  970 

V.  Friinklin  146  7 

V.  Ide  1522 

Gwathmeys  v.  Ragland  606,  1699 

Gvvinn  v.  Sinies  623 

Gwynn  y.  Turner  555 

Gyles  V.  Hall  899,  1088 


H. 


Habersham  v.  Bond  1687 

HackenhuU  v.  Westbrook  1331 

Hacket  v.  Reynolds  186 

Hackett  v.  Callender  460 

V.  Snow  1516,  1531 

Haden  v.  Buddensick  610 

Hadley  v.  Chapin  920,  1469 

V.  Houghton  1244 

V.  Nash  227 

V.  Pickett  207 

Hadlock  v.  Bulfincb  924 

Haffley  v.  Maier  20,  1395 

Hagan  v.  Parsons  1200,  1207 

V.  Walker  1439 

Hagar  v.  Brainerd  54,  687 

Haggerty  v.  Allaire  Works  649 

V.  McCanna  969 

Hagthorpi;.  Hook  271,  1123 

Hague   V.   Inbabitants  of   West 

Hoboken  707 

Haines  v.  Beach  1064,  1396 

V.  O'Connor  332 

V.  Poblman  964 

V.  Taylor  1676 

V.  I'hompson  246,  248,  262 

Hale  V.  Gouverneur  76 

V.  Hale  652 

V.  Morgan  987 

V.  Smith  593 

Haley  v.  Bagley  98 

V.  Hammersley  450 

Hall  V.  Arnold  710 

V.  Bamber  1351,  1458 

V.  Bell  716,  1305 

V.  Bliss  1793,  1892,  1897 

V.  Byrne  1333 

V.  Click  235 

V.  Conn.  Mut.  L.  Ins.  Co.       1800 

V.  Corcoran  623 

V.  Cusbman  726,  802,  881 

r.  Denckla  1144 

xlvi 


Hall  V.  Erwin 

1485 

V.  Gale 

1503 

V.  Gould 

1935 

V.  Hall 

1395, 1439 

V.  Heydon 
V.  Hopkins 
V.  Huggins 

627 

678 

1406 

V.  Lance 

27,  664 

V.  Leonard 

63 

V.  M'Duff 

557 

V.  Nelson 

1406.  1410,  1442 

V.  Patterson 

538 

V.  Savill 

29,  265,  548 

V.  Scovel 

193 

V.  Tovvne 

1876 

V.  Tufts      . 

352 

V.  Tunnell 

24,543,  665 

V.  Van  Cleve 

244 

V.  Yeoll 

1408 

Halleck  v.  Guy 

1613 

Hallesey  v.  Jackson 
Hallock  V.  Smith 

1144 
210,  216 

Halo  V.  Schick 

250 

Halsey  v.  Martin 

255 

V.  Reed       752,  755,  878,  1380, 
1625,  1711,  1713 
Halsteads  I'.  Bank  of  Ky.         469,  562 
Hambright  v.  Brockman  1848 

Haniet  v.  Dundass  325 

Hamilton  Building  Ass'n  v.  Rey- 
nolds 362 
Hamilton  v.  Dobbs                 1066,  1086 
V.Gilbert  217 
r.  Jefferson                        1353 
V.  Lubukee      192,  826,  1674, 
1787,  1789,  1855,  1898, 
1899 
i;.  Nutt                                  596 
V.  Quimby                   924,  936 
V.  Royse                              1621 
V.  State                               1654 
Hamlin  v.  Pai'sons                               143 
Hammersley  v.  Knowlys                     906 
Hammonds  v.  Hopkins    244,  315,  1159 
Hampton  v.  Nicholson                969,  970 
Hancock  v.  Carlton              68,  765,  824 
V.  Hancock      848,  860,  1369, 
1439 
V.  Watson  65 
Hancock's  appeal                    822,  1701 
Hancox  v.  Fishing  Ins.  Co.               401 
Hanford  v.  Blessing           261,  262,  277 
V.  Fitch                                1150 
Hanger  v.  The  State                        1698 
Hanks  v.  Greenwade                         1337 
Hanna  v.  Shields                               1503 
Hannah  u.  Carring-ton                     1790 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Han  nay  v.  Thompson  316 

Hannuiii  r.  Wallace  889 

Hansard  v.  Hardy        827,  116G,  1169, 

1556 
Hanson,  ex  parte.  1496 

Hanson  v.  Preston  1099 

Hapgood  V.  Blood  35,  687,  G94 

Haranff  v.  Plattsmier  558 

Harbinson  v.  Houghton  273,  1499 

Harbison  v.  Lemon  294 

Hardaway  v.  Semmes  490 

HardtMibergh  v.  Schoonmakcr  538 

Hardin  v.  Hyde  595,  744,  1494 

Harding  v.  Davies  1088 

V.  Harding  1642 

r.  Mill  River  Woollen 

Manuf.  Co.      1174,  1187 
V.  Pingey  1095 

Hardingham  r.  Nichols  581 

Hards  v.  Burton  1590 

Hard  wick  c.  Bassett  1606 

Hardy  v.  Commercial  Bank  of 

N.  O.  934 

V.  Nekon  68 

V.  Reeves  1168 

Hardy,  ex  parte.  580 

Hare  v.  Van  Deusen  194,  207 

Hargreaves  v.  Rothwell  586,  588 

Harkins  v.  Forsyth      1218,  1563,  1586 

Harkrader  v.  Leiby  46 

Harlan  v.  Murrell  1454 

V.  Smith  1454,  1586 

Harlow  v.  Thomas  735 

Harmer  v.  Priestley  890,  1118 

Harmon  v.  Short  38 

Harnickell  v.  Orndoff"  1786,  1787, 

1915 

Uavpv.  Calahan  20,  1207 

Harper  i-.  Barsh  532,  1593 

V.  Ely         27,  653,  1080,  1111, 

1123,  1132,  1134,  1135,  1137, 

1141,  1182,  1800 

Harper's  api^eal         250,  312,  332,  374, 

1117,  1127,  1128,  1129 

Harrington  v.  Allen  558,  573,  582,  583 

V.  Fortner  168 

V.  Slade  1201 

Harris  v.  Hanks  191,  193,  210 

V.  Harlan  43  5 

V.  Harland  606 

V.  Haynes  446,  687 

r.  Jex  893,  895,  901 

V.  King  226 

V.  Makepeace  1334,  1577 

V.  Mills  1194,  1207 

V.  Mulock  897,  1215 

Harrison  v.  Colton  623 


Harrison  v.  Eldridge 

973 

V.  Forth 

582 

,  583 

V.  Guerin 

1631 

V.  Harrison 

1608 

V.  Hollins 

1154 

V.  Jackson 

121 

V.  Johnson 

913 

V.  Lemon 

244 

r.  N.  J.  R.  &  Transpor- 
tation Co.  601,  913 
V.  Phillips  Academy         244, 
245,  252,  549,  977 
V.  Pike  1515 
V.  Roberts        711,  712,  1876 
V.  Siinonds                         1584 
V.  Styers  663 
V.  Wyse                  1114,  1118 
Harrow  v.  Johnson  728 
Harsliaw  v.  McKesson           1180,  1580 
Harshev  v.  Blackmarr  95 
Hart  v.'Chalker                                   344 
V.  Eastern  Union  Railway 

Co.  1225 

V.  Farmers'    &   Mechanics' 

Bank  460,  549,  572 

V.  Goldsmith       1095,  1105,  1300 

V.  Hart  97 

V.  Linsday  1663 

r.  Ten  Eyck  1373 

Hartley  i-.  Frosh  538 

V.  Harrison  676,  745,  763, 1494 

V.  Kirlin  383 

V.  O'Flalierty  1621 

V.  Tatham  744,  746,  842,  889, 

893,  901,  1450,  1491 

Hartman  v.  Clarke  1335,  1449 

V.  Ogborn  1355 

Hartshorn  v.  Hubbard  66  7,  668 

Hartwell  v.  Blocker       683,  1378,  1460 

Hartz  1-.  Woods  953 

Harvey  v.  Harvey  1685 

V.  Kelly  229 

V.  Thornton  1414 

V.  Varney  629 

Harvie  v.  Banks  1134 

Harvill  v.  Lowe  227 

Harwood  v.  Mayne  1414 

Haskell  v.  Bailey         1146,  1193,  1509 

V.  Bissell  545 

Haskill  V.  Sevier  85,  533 

Haskins  v.  Hawkes      1054,  1101,  1248 

Hassam  v.  Barrett  283,  300,  336 

Hasselman  v.  McKernan         472,  1396 

Hastings  v.  Cutter  532 

V.  Pratt  720,  1256 

V.  Wiswall  652 

Hatch  V.  Garza  1570 

xlvii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Hatch  V.  Kimball 
V.  Skelton 
V.  White 
Hatcher  v.  Hatcher 

V.  Jones 
Hatfield  v.  Reynolds 
Hathaway  v.  Juneau 

V.  Lewis 
Hattier  v.  Etinaud 
Hatz's  appeal 
Haubert  v.  Haworth 
Haugh  V.  BIythe 
Haven  v.  Adams 


848,  867 
85  7 
950 
232 
1233 
889,  964 
97 
1717 
1498 
951 
991 
208 
779,  782,  1307 


V.  Boston  &  Worcester  R 

R.  779 

V.  Emery  452 

V.  Grand  June.  R.  &  Depot 

Co.  1666 

Hawes  v.  Rhoads  1469 

Hawkes  v.  Brigham  1259 
r.  Dodge  County,  &c.  Ins. 

Co.  964 

V.  Pike  539 

Hawkins  v.  Clermont  390 

V.  Hill  1458 

«'.  Hudson  1876 

V.  May  382 

V.  McVae  955 

HaAvley  v.  Bennett  164  7 

V.  Bradford         114,  666,  1693 

Hawtry  v.  Butlin  441 

Hay  V.  Hill  543 

Hayden  v.  Smith  983 

■  Hayes  v.  Dickinson  1235,  1536 

V.  Shattuck  1667,  1674 

V.  Ward  724 

Haygood  i\  Marlowe  117 

Haynes  v.  Meek  1667 

V.  Seachrest  606  1371 

V.  Stevens  68 

V.  Swann  315 

V.  Wellington  1250,  1654 

Hays  V.  Hall  176 

r.  Lewis  1457 

V.  Thomas  1584 

Hays'  appeal  1637 

Hayward  v.  N.    E.  Mut.  F.  Ins. 

Co.  399 

V.  Nooney  466 

V.  Shaw  584 

V.  Stearns  1396,  1425 

Hayworth  v.  Worthington  294 

Hazard  v.  Draper  400 

V.  Hodges  1676 

Heacock  v.  Swartwout  336,  640 

Headley  v.  Goundry  974 

Heald  v.  Wright  293 

xlviii 


Heard  v.  Evans  924 

Hearne  v.  Rogers  603 

Heath  v.  Hall  1179,  1182,  1789, 

1889,  1936 

V.  Van  Cott  112 

V.  AVcst  104,  848 

V.  Williams     258,  277,  279,  294 

Hebert  v.  Doussan  741 

Hebron  v.  Centre  Harbor  531 

Heburn  v.  Warner    106,  109,  110,  111 

Hecht  V.  Sparks  212 

Hedge  v.  Holmes  952,  1316 

Heermans  v.  Clarkson  965 

Heeter  v.  Glascow  538 

Hegeman  v.  Johnson  1613 

Ueimberger  v.  Boyd  1052 

Heimstreet  i;.  Winnie  1395,  1425,  1439 

Heinlin  v.  Castro  1509 

Heist  V.  Baker  228 

Heister  v.  Fortner  460 

V.  Maderia  268 

Hele  V.  Lord  Bexley  1 1 20 

Helfrich  v.  Weaver  1355 

Hellawell  v.  Eastwood  429,  448 

Heller  v.  Crawford  623 

Helmbold  v.  Man  936 

Hemenway  v.  Bassett  983 

Hemphill  v.  Giles  773,  777 

V.  Ross  45 

Hendee  v.  Pinkertoa         125,  127,  128 

Hendershott  v.  Ping        924,  936,  1192 

Henderson  v.  Burton  191 

V.  Herrod  822,  1701 

V.  Lowry  16  70 

V.  McGhee  556 

V.  Palmer  1333 

V.  Pilgrim  472 

Hendrickson's  appeal  461,  787 

Hendry  v.  Quinan  1437 

Henisler  v.  Nickum  465 

Henkle  v.  AUstadt  1621 

Henly  v.  Hotaling  247,  260,  262, 

265,  269 
Hennesv  v.  Farrell  57,  702,  716 

Henry  ^•.  Bell  677 

V,  Confidence  Gold  &  Silver 

M.  Co.  1193,  1204,  1205,  1207 

V.  Davis        251,  268,  280,  1039 

V.  Root  104 

V.  Smith  1436 

V.  Tupper  388,  395 

Henry's  case  1067 

Henshaw  v.  Wells     51,  725,  776,  1536 

Hensiker  v.  Lamborn  936 

Hepburn  v.  Griswold  901 

V.  Snyder  191 

Herbert  v.  Hanrick  703 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Herbert  v.   Mich.  Build.    &  Loan 

Ass'n  728 

V.  Scofield  191 

Herkimer  v.  Rice  398 

Herren  v.  Clifford  1454 

Herring  v.  WoodhuU  794,  822 

Herrington  v.  McCoUum  1939 

Hersliey  v.  Hershey  609,  1335 

Hess  V.  Final  149G 

Hetfield  v.  Newton  1494 

Heth  V.  Cocke  1421 

Hetzell  V.  Barber  896 

Hevves  v.  Bickford  697 

Hewitt  I'.  Loosemore        589,  591,  592 

V.  Montclair  135(1 

V.  Nanson  1572 

V.  Northup  1231 

V.  Rankin  119,  123 

V.  Templeton  936 

Hey  17.  Scliooley  1675 

Heydle  v.  Hazleliurst  1594 

Heyer  v.  Deaves  1608,  1632 

V.  Pruyn  1204 

Heyman  v.  Babcock  166  7 

V.  Beringer  964 

V.  Lowell  1401,  1442 

Heyward  v.  Judd  1051,  1548 

Hiatt  V.  Goblt  1454 

Hibbard  i'.  Bovier  463 

Hibblewhite  v.  M'Morine  90 

Hichens  v.  Kelly  1384 

Hickman  v.  Perrin  55  7 

V.  Quinn  315 

Hickox  V.  Lowe     70,  72,  261,  278,  279 

Hicks  V.  Bingham  907,  1093 

V.  Hicks  264,  711 

Hidden  v.  Jordan  331,  1127 

Hiester  v.  ^Laderia  332,  341 

Higginbotbam  v.  Barton  777 

Higgins,  ex  parte  862 

Higgins  17.  Scott  1204 

V.    The  York    Buildings 

Co.  667,  1120 

V.  West  1553 

Higginson  v.  Mein  1194 

High  V.  Batte  219 

Hile  i\  Davison  1502 

Hilesy.  Moore  1522,  1525 

Hill  I'.  Beebe  924,  927 

V.  Butler  1502 

V.  Edmonds  1099,  1422 

V.  Edwards         244,  254,  264,  808 

r.  Eldred  176,358 

V.  Grant  241,  268 

V.  Grigsby  225 

V.  Gwin  144,  693,  695 

V.  Hewett  1118 

TOL.  I.  d 


Hill  v.  Hoover  1670,1675 

u.  La  Crosse  &  Milw.  R.  Co.  155,157 

V.  Mc  Carter  562,  1621 

V.  Meeker  1482 

V.  More     394,  808,  812,  1260,  1266 

V.  Payson  673,  1052,  1093 

V.  Pixlcy  848,  852 

V.  Robertson  38,  667 

V.  Sewald  432 

V.  Wentworth    429,  442,  444,  446 

V.  West  972 

V.  White  1064 

Hilihouse  v.  Dunning  265 

Hilliard  v.  Allen  '     1118 

Hillman  v.  Stumph  990 

Hills  V.  Elliot  787 

V.  Loomis  317 

Hilton  V.  Bissell  743 

V.  Catherwood  941 

V.  Lothrop        1098,  1099,  1100 

Hinchman  i'.  Emans  848 

17.  Stiles  1693 

V.  Town  563 

Hinckley  v.  Wheelwright  711 

Hind  V.  Poole  1790 

Hinds  17.  Allen  1355 

V.  Ballou  808,  848 

V.  Mooers  822,  1699,  1700 

Hineu.  Dodd  570,  580 

Hines  v.  Perkins  225,  232 

Hinson  v.  Partee  250,  315 

Hipp  V.  Huchett  1600,  1780 

Hippesley  v.  Spencer  684 

Hirsch  v.  Livingston  1645 

Hiscock  V.  Phelps  120 

Hitchcock  V.  Fortier     679,  1121,  1656 

V.  Harrington  666,  701 

V.  Merrick         77,  359,  796, 

805,  1606 

V.  U.  S.  Bank  of  Penn. 

1322,  1542 

Hitchman  v.  Walton  455 

Hitt  V.  Holliday  1069 

Hoadley  v.  Hadley  84,  539 

Hoag  V.  Rathbun  888 

V.  Starr  926 

Hoareu.  Peck  1173 

Hobart  v.  Abbot  1100,  1374 

V.  Sanborn  42,  1288 

Hobbs  V.  Fuller  1257,  1271 

Hobson  V.  Bell  1867 

V.  Hobson  112,  114 

V.  Roles  808 

Hocker  v.  Reas  1077 

Hockley  v.  Bantock  183 

Hodgdon  v.  Naglee  956,  1620 

V.  Shannon  70,  353 

xlix 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Hodgen  v.  Guttery 


468,  560,  1048, 
1064,  1395 
Hodges  V.  Tennessee  Marine  &  F. 

Ins.  Co.  309,  398,  423 

Hodgman  v.  Hitchcock  926,  948 

Hodgson  V.  Butts  532 

V.  Shaw  882 

Hodle  V.  Healey  1172 

Hodson  V.  Treat  676,  1048,  1395, 

1406,  1412,  1654 

Hoff  V.  Burd  1483 

Hoff's  appeal  752 

Hoffman  v.  Anthony    1829,  1840,  1843 

V.  Harrington         1144,  1195, 

1889,  1902,  1922 

V.  Mackall  62 

Hogarty  v.  Lynch  325,  335 

Hogel  V.  Lindell  282,  304 

Hogsett  V.  Ellis  778 

Hoit  V.  Russell  89,  538,  861,  1877, 

1879,  1898 

Hoitt  V.  Webb  787 

Holbrook  v.  Am.  Ins.  Co.  418,  423 

V.  Bliss        1276,  1277,  1296, 

1313 

V.  ChamberHn    121,  127,  441 

V.  Dickenson  560 

V.  Receivers,  &c.  1496 

V.  Thomas  1262 

V.  Worcester  Bank  1084 

Holcomb  V.  Holcomb   1440,  1589,  1636 

Holddrige  v.  Sweet  1377,  1427 

Holden  v.  Gilbert         1180,  1496,  1498 

V.  Pike  848,  1621 

V.  Sackett        1646,  1654,  1662 

V.  Stickney  1774,  17  75 

Holland  v.  Baker  1099,  1398 

V.  Cruft  799 

V.  Hodgson  448 

HoUenbeck  i'.  Shoyer  966,  969 

Holliday  v.  Arthur  250,  295 

V.  Franklin  Bank      463,  467 

Hollingsworth  v.  City  of  Detroit 

651,  653,  1141 
Hollister  v.  Dillon  953,  1229 

Holm  V.  Wust  148 

Holman  v.  Bailey     886,  889,  892,  946, 

1093 
V.  Patterson  197,  226 

Holmes  v.  Bybce  1396 

V.  Fresh  266,  276,  335 

V.  Grant        258,  262,  266,  309 
V.  Holmes  332,  666,  901 

V.  Mathews  281 

r.  McGinty  817 

V.  Morse  681,  1127 

V.  Stout  601 

1 


1334 

1039, 

1046 

152 

783, 

1106 

184 

264,  279, 

1146 

1644 

387 

1678, 

1768 

893 

,  897 

Holmes  v.  Taylor 

Holridge  v.  Gillespie 

Holroyd  v.  Marshall 

Holt  V.  Rees 

Holthausen,  ex  parte 

Holton  V.  Meeghen 

Home  Ins.  Co.  v.  Jones 

Homer  v.  Savings  Bank 

Honaker  v.  Shough 

Honbie  v.  Volkening 

Hone  V.  Fisher  678,  807,  1540 

Honore  v.  Bakewell  198.  212 

V.  Hutchings  244,  265,  273 

V.  Lamar  F.  Ins.  Co.    418,  420 

Hood  V.  Brown  99,  541 

V.  Easton  1125 

V.  Phillips  857 

Hooker  v.  Olmstead  729 

Hoole  V.  Atty.  Gen.  599 

Hooper  v.  Wilson  54,  669 

Hooper,  ex  parte  181,  183,  947 

Hoopes  V.  Bailey     267,  269,  326,  1095 

Hoover  v.  Wheeler  609 

Hope  V.  Liddell  595 

Hope  F.  Ins.  Co.  v.  Cambrelling      589 

Hopkins  v.  Hopkins  401 

V.  Stephenson  1127 

V.  Ward  1435 

Hopkinson  v.  Rolt  365,  371 

Hopper  V.  Jones  288 

17.  Parkinson  466 

Ploppin  V.  Doty  1048 

Ho])pock  V.  Conklin  1676 

V.  Johnson  587 

Hord  V.  James  1554 

Hordle  v.  Healey  1166 

Horlock  V.  Smith  1139,  1140 

Horn  V.  Keteltas  272,  309 

V.  Volcano  1663 

Hornby  v.  Cramer      1089,  1751,  1845, 

1850,  1854 

V.  Matcham  1123 

Horner  v.  Zimmerman  1545,  1587 

Horsey  v.  Hough         1641,  1866,  1915 

Horstraan  v.  Gerker  791,  831,  834 

Horton  i'.  Davis  1491 

V.  Horner  212 

V.  Ingersoll  714,  1440 

Hosford  V.  Nichols  661,  663,  1511 

Hosie  y.  Gray  1180,  1355 

Hoskin  v.  Woodward  429,  453 

Hosmer  u.  Carter  137 

V.  Sargent  1873,  1874 

Hotchkiss  V.  Clifton  Air  Cure        16  72 

Hough  V.  Bailey  349,  1198,  1204,  1469 

V.  Doyle  1180,  1181 

V.  Horsey  1494 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Hough  r.  Osborne  822,  in[)9 

Houghton  V.  Marion  1-112 

Houser  v.  Lumont    244,  312,  323,  331, 

339 

Houston  V.  Stanton  199 

Hovey  r.  Blanchard  584 

V.  Hill  842 

How  i\  Vigures  1572 

Howard  f.  Ames  953,  1876 

V.  Bugbee  1051 

V.  Chase  566,  595 

V.  Gresham         841,  889,  1331 

V.  Handy         1258,  1262,  1243 

V.  Harris        1041,  1063,  1067 

V.  Hatch        1751,  1838,  1893, 

1904 

V.  Hildreth  915,  1194 

V.  Houghton  702,  718 

V.  Howard  861,  889 

r.  Priest  123 

V.  Robinson  35 

Howard  F.  Ins.  Co.  v.  Bruner        422 

Howard  Ins.  Co.  v.  Halsey      562,  595, 

982,  1621,  1624 

Howard  Mut.  Loan  &  Fund  Asso. 

V.  Mclntyre  467,  1292 

Howards  v.  Davis  1882 

Howe  V.  Freeman  152,  452 

V.  Hunt  776 

V.  Lewis  675,  889,  905 

V.  Russell  250,  298 

V.  Wilder  355,  833,  1281 

,  Howe,  in  re  163 

Howel  V.  Price  3,  677 

Howell  V.  Hester  1676 

r.  Ripley  1516,  1524,  1546 

Howland  v.  ShurtlefE  1144,  1194, 

1195,  1198 
Hoxie  V.  Carr  709 

Hoy  V.  Allen  462 

V.  Bramhall    562,  945,  982,  1592, 
1620,  1624,  1631, 1711 
Hoyle  V.  Cazabat  888 

V.  Plattsburgh  R.  Co,     152,  154, 
157,  452 
Hoyt  V.  Bradley  388,  496 

V.  Bridgewater  Copper  Min- 
ing Co.  634 
V.  Hoyt  4  72 
V.  ]\rartense  827,  1059,  1374 
V.  Thompson  127,  823 
Hubbard  v.   Ascutney  Mill  Dam 

Co.  792,  1063 

V.  Bagshaw  436 

r.  Chopped  1503 

V.  Cummings  104 

t'.  Hubbard  391 


Hubbard   r.  Jarrell     1740,  1861,  1915 

V.  Jasinski  958,  1815 

V.  Norton  68 

V.  Savage  70,  367 

V.  Shaw  1123,   1138 

V.  Turner  791 

Hubbell  V.  Blakeslee  846 

V.  Moulson  13,  14,  715, 

1115 

V.  Sibley       1147,  1156,  1751, 

1852,  1882,  1906 

Iluckins  V.  Straw  664 

Hudgkins  v.  Lanier  1448,  1675 

Hudnit  V.  Nash  1439 

Hudson  V.  Warner  595 

Huffard  v.  Gottberg  1936 

Huggins  V.  Hale  1388 

Hughes  V.  Bucknell  776,  915 

V.  Edwards    50,  132,  285,350, 

1144,  1145,  1202,  1204,  1215 

V.  Frisby  1459 

V.  Sheaff  258  ■ 

V.  Tong  531 

V.  Williams  1 1 23 

V.  AVooley  368,  569 

Huguenin  v.  Baseley  1663 

Hugunin  v.  Starkweather         924,  927 

Hulbert  v.  McKay  1685 

Hulett  I'.  SoLilard  171 

V.  Whipple  201 

Hulfish  r.  O'Brien  1502 

Huling  V.  Drexell  1355 

Hulings  V.  Guthrie  462,  463 

Hull  V.  Alexander  748,  1712 

V.  Cushman  1825 

V.  Lyon  1405,  1411 

V.  McCall  268,   1052 

Hulme  V.  Tenant  107 

Hulsman  v.  Whitman  628 

Hume  V.  Dessar  1503 

V.  Peploe  893 

Hummer  v.  Schott  207 

Humphrey  v.  Hurd        717,  1152,  1158 

Humphreys  f.  Harrison  .  684 

V.  Newman  557 

V.  Snyder  163,  268 

Hungerford  v.  Clay,  783 

Hunt  V.  Acre     1322,  1396,  1414,  1418, 

1586 
V.  Bay  State  Co.  439 

V.  Bullock  452 

V.  Chapman  1496,  1606 

V.  Clark  581 

f.  Dohrs  1324,1577 

V.  Ellison  1675 

V.  Fownes  1606 

V.  Fox  969 

li 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Hunt  r.  Harding  1181 

V.  Hunt  703,  789,  808,  848,  855, 
859,  1254,  1290,  1292 


V.  Jolmson 
V.  Kelly 
V.  Lewin 


1322,    1542, 


V.  Maynard 
V.  McConnell 
V.  MuUanphy 
V.  Rousmanier 


469 
1821 
1711, 
1715 
1304 
1626 

435 
1792 


I. 


V.  Stiles     1228,  1257,  1262,  1699 

V.  Townes  1606 

V.  Waterman  208 

Hunter  v.  Hatch  250,  293 

V.  Le  Conte  893 

V.  Levan  1592 

Huntingdon  v.  Huntingdon  114 

Huntington  v.  Smith  701 

Hurck  V.  Erskine  1703 

Hurd  V.  Case  1911 

V.  Coleman    359,  901,  950,  1158, 

1262,  1266,  1282 

V.  Robinson       70,  343,  350,  352 

Hurley  v.  Holly  day  232 

Hurloeh  v.  Smith  217 

Husted  V.  Dakin  1687 

Huston  V.  Stringham  1401,  1402, 

1403,  1414,  1493,  1494 

Hutchings  v.  Muzzey  Iron  Works 

1908 
Hutchins  V.  Carleton 
V.  King 
V.  State  Bank 
Hutchinson  v.  Bearing 
V.  Ford 
V.  Kay 
V.  Patrick 
Hutton  V.  Mayne 


V.  ]\Ioore 
V.  Sealy 
Huyler  v.  Atwood 
Hyatt  V.  Cochran 

V.  James 
Hyde  v.  Bennett 
V.  Dallaway 
V.  Warren 

Hyland  v.  Stafford 
Hyman  v.  Devereux     817,  1752,  1767, 

1779 

V.  Kelly     41,  668,  1220,  1348, 

1522, 1532 

Hyndman  v.  Hyndman     317,  712, 

1045,  1876 


lii 


804,  808,  848 

143,  144,  145 

797,  960 

777 

150 

449 

230 

1572 

212,  225 

1773 

116,  752 

295 

617 

497 

1149 

1773,  1792,  1881, 

1882 

1808,  1899 


Iddings  V.  Bruen  1535 

Iglehart  v.  Armigcr  212 

V.  Bierce  1392 

V.  Crane  562,  595,  982,  1331, 

1620 

Illinois  Fire  Ins.  Co.  v.  Stanton      397, 

408 
Inches  v.  Leonard         915,  1194,  1195 
Incorporated  Society  v.  Richards  1203 
Indiana  Mut.    Fire    Ins.    Co.   v. 
Coquillard 


Ing  V.  Cromwell 
Ingalls  V.  Morgan 
Inge  V.  Boardman 
Ingell  V.  Fay 
IngersoU  v.  Savage 
Ing-le  V.  Culbertson 


422 
75,  1340 
879,  1620 
729,  1401,  1414 
692 
1056 
1769,  1778,  1829, 
1835,  1902,  1907 
Ingraham  v.  Disborough  842,  843 

Ingram  v.  Little  90 

V.  Smith  1107 

Inman  v.  Parsons  1455 

Insurance  Co.  v.  Brown  367 

International  Bank  v.  Bowen  947 

Iowa  County  v.  Mineral  Point  R. 

Co.  1476 

Ipswich  Manuf.  Co.  v.  Story  919 


Ireland  v.  Abbott 

V.  Woolman 
Ireson  v.  Denn 
Irnham  v.  Child 
Irving  V.  De  Kay 
Irwin  V.  Davidson 
V.  Jeffers 
V.  Longworth 
Isbell  V.  Kenyon 
Isett  V.  Lucas 


Jackman  v.  Hallock 
Jackoway  v.  Denton 
Jackson  v.  Blodget 

V.  Bowen  352, 
V.  Brown 
V.  Burgott 
V.  Campbell 
V.  Carswell 
V.  Clark 
V.  Colden 


V.  Crafts 
V.  Davis 
V.  De  Lancey 


1339 

1590,  1621 

1409 

284 

1496 

1125 

1662 

271 

1635 

606,  1700 


212 

663 

813,  837,  1485 

353,  1678,1921 

134 

580 

798 

26,  166 

1873,  1874 

467,  534,  1751, 

784,  1892,  1893 

889,  893,  1910 

889 

777,915,  1170 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Jackson  v.  Dominick  646,  1808,  1899 
17.  Dubois  461,  464,  701,  702 
V.  Farmers'  Ins.  Co.  408 

V.  Ford  253 

V.  Given  475,  560 

V.  Green  171 

V.  Harris  1840 

V.  Henry         646,  1767,  1808, 
1897,   1898 
w.  fiill  217,220 

V.  Hudson  915,  1195 

V.Hull  702,1215 

V.  Humphrey  534 

V.  Jackson  719 

r.  Littell  1646 

V.  Lodge  20,  288,  1207 

V.  Losee  1411 

V.  Magruder  1678 

V.  Mass.  Mut.    Fire    Ins. 

Co.  422 

V.  Perkins  538,  539 

V.  Pierce  705,  915 

V.  Post  574 

V.  Pratt  915,  916,  1195 

V.  Richards        276,  472,  539, 

541 

V.  Sackett  349,  1204 

i;.  Slater  915,  1170 

V.  Stackhouse  889 

V.  Stanford  1331 

V.  Stevens  341 

V.  Van  Valkenburgh  475,  560, 

572,  580,  583,  584 

V.  Warren         27,  1637,  1653, 

1663 

V.  West  467 

V.  Willard    44,  701,  804,  1485 

r.  Wood  1195 

Jacobs  V.  Richards  1510 

Jacobus  V.  Mutual  Benefit  Life 

Ins.  Co.  ■  541 

JacoAvay  v.  Gault  533 

James  v.  Biou  863 

V.  Brown  562,  1624,  1631 

V.  Fisk  1577 

V.  Hubbard  1621 

V.  James  1572 

V.  Johnson        14,  472,  791,  848 

V.  Lichfield  600 

V.  Morey        365,  377,  472,  546, 

547,  789,  842,  848 

V.  Roberts  619,  626 

V.  Stull  1833 

V.  Thomas  76 

James,  ex  parte  1878 

Jamieson  r.  Bruce  34 

Jamison  v.  Jamison  538 


Jamison  v.  Perry  672,  1211 

Jaques  v.  Methodist  Epis.  Ch.  109 

V.  Weeks      244,  312,  462,  548, 
580 
Jarman  v.  Wiswall  1432,  1711 

Jarvis  v.  Aikens  561 

r.  Dutcher     136,  176,  179,  186, 
188,  469 
V.  Frink  820 

V.  Woodruff  272,  289,  1145 

Jaycox,  in  re  1231 

Jean  v.  Wilson  609 

Jefferson  Colleger.  Prentiss  1701 

Jencks  v.  Alexander  1139,  1751,  1855, 
1906,  1911,  1937 
Jenkin  v.  Row  281 

Jenkins  v.  Continental  Ins.  Co.       792, 
1064,  1081,  1087 
V.  Eldridge  285,  1107 

«.  Freyer  1621 

V.  Hinman  1521 

V.  Jones  1799,  1801,  1913 

V.  Smith  1378 

V.  Stetson  391 

Jenkinson  v.  Ewing  936,  1511 

Jenner  v.  Tracy  1144,  1173 

Jenness  v.  Cutler  1336 

V.  Robinson  1080 

Jennincrs  v.  Ward  1042,  1044 

V.  Wood  550,  951  ■ 

Jerome  v.  Hopkins  701 

V.  McCarter  1439 

V.  Seymour  859 

Jessup  V.  Bridge  160 

Jesup  V.  City  Bank  of  Racine    76,  129, 
1082,  1710 
V.  Stone  609 

Jesus  College  v.  Bloom  685 

Jett  V.  Schaffer  1323 

Jewell  V.  Harrington  1491 

Jewett  V.  Bailey  244 

V.  Draper  749 

V.  Guild  1104 

John  &  Cherry  St.,  in  re  1052 

John  V.  Bumpstead  1822 

V.  Nut  136 

Johns  V.  Church  350,  352 

v.  Reardon  114,  1420 

V.  Scott  550 

Johnson,  ex  parte  908 

Johnson  v.  Anderson         360,  907,  947 
V.  Baker  1661 

V.  Blydenburgh  1698 

V.  Britton  1400 

V.Brown         822,1280,1283, 
1306,  1378 
V.  Candage  1072,  1228 

liii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Johnson  i'.  Carpenter 
V.  Cawthorn 
V.  Clark 
V.  Cornett 
V.  Cummins 


791,  838 
231 

269,  287 
804 
112 


V.  Donnell      1545,  1565,  1608 

V.  Dorsey  1838 

V.  Elliott  848 

V.  Foster  762 

V.  Gere  1500 

V.  Gwathmey  212 

V.  Harmon    1047,  1333,  1425, 

1680 

V.  Hart  701,  1374 

V.  Houston  39,  304,  716 

V.  Lewis  808,  859,  1220 

V.  Me  Grew  191 

V.  Miller        1120,  1122,  1140 

V.  Monell  738,  748,  1401, 

1404 

V.  Nations  913 

V.  Nunnerly  215 

V.  Phillips  1290 

V.  Rice  901,  982 

V.  Richardson  366,  621 

V.  Robertson  812,  1397,  1800, 

1902 

V.  Sherman  20,  288,  889 

V.  Smith  295 

V.  Stagg  471,  557,  558 

V.  Stevens  1229 

V.  Sugg  207 

r.  Turner  1786 

V.  Walton  537 

V.  Webster  864 

V.  White  684,  686,  1090 

V.  Williams  1621,  1860 

V.  Zink         741,  748,  793,  863, 

881,  1087,  1380 

Johnston  v.  Canby  467,  5  72 

V.  Crawley  1331 

V.  Eason  1873 

V.  Ferguson  112 

V.  Gray  244,  250 

Johnstone  v.  Scott  1051 

Jolland  V.  Stainbridge  580 

Jolly  V.  Arbuthnot  1519 

Jones  V.  Bamford  584 

V.  Berkshire  533 

V.  Birms  1099 

V.  Bragg  866 

11.  Brewington  168 

V.  Brittan  335 

V.  Burden  1653 

V.  Chamberlin  479 

V.  Clark  777 

V.  Conde  1215 

liv 


Jones  V.  Costigan 
V.  Doss 
V.  Dow 
V.  Elliott 
V.  Gibbons 
V.  Gilman 
V.  Hardesty 
V.  Janes 
V.  Jones 
V.  King 
V.  Lapham 
V.  Lawrence 
V.  Mack 
V.  Matthie 
V.  Meredith 
V.  Moore 
V.  Myrick 
V.  Parsons 
V.  Phelps 
V.  Porter 


454 

212 

1632 

71 

472 

1586 

842 

191 

315,  616 

678 

173,  1404,  1675 

1181 

1678,  1902 

1801,  1906 

1067 

1866 

1621 

1416 

566,  567,  608,901 

1442 


V.  Quinnipiack  Bank     387,  726, 

802 

V.  Richardson  149 

V.  Smith         474,  591,  592,  595, 

604 

V.  Steinbergh  1432,  1709,  1711 

V.  St.  John  1440 

V.  Thomas  697,  1211,  1658 

V.  Trawick  286 

V.  Trusdell  649 

V.  Van  tress  209 

V.  Webster  150 

V.  Williams  593 

V.  Yoakam        •  176 

Jordan  v.  Blackmore  1503 

V.  Farnsworth  539 

V.  Fenno  287 

V.  Forlong  948 

V.  Mead  481 

V.  Smith  924,  936 

Joslin  V.  N.  J.  Car  Spring  Co.         762 

Joslyn  V.  Wyman  357,  886,  946, 

947,   1079,  1265 

Jourdan  v.  Jourdan  538 

Journeay  v,  Gibson  534 

Joy  V.  Adams  1204 

V.  Birch  262 

V.  Jackson  1432 

Jovnes  V.  Statham  321 

Judd  V.  Flint  244,  245,  621,  928 

V.  O'Brien         1751,  1839,  1840, 

1855 

V.  Seekins  541,  679,  848 

V.  Woodruff  703 

Judge  V.  Forsyth  1330 

V.  Reese  250,  337 

Judson  V.  Emanuel  1396 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Jumcl  V.  Jiimel  740 

Junction  R.  Co.  v.  Bank  of  Ash- 
land 656 
159 


K. 


Kamena  v.  Huelbig  813 

Kannady  v.  Me  Can-on  19 

Kansas  Valley  Bank  v.  Rowell         134 

Karnes  v.  Lloyd  27,  1218 

Kattenstrotli  i'.  Astor  Bank  152G 

Kauffelt  t'.  Bower  191,  189,  210 

Kay  V.  Whittaker  1396,  1401,  1439 

Kearney  v.  Macomb  263 

Kearsing  v.  Kilian  1434 

Keech  v.  Hall  6G7,  1066 

Keegan  v.  Cox  105 

Keeler  v.  Keeler  678 

Keene  v.  Munn  1621 
Keep  V.  Michigan  Lake  Shore  R. 

Co.  1528,  1532 

Keiffer  r.  Starn  66 

Keith  V.  Horner  191,   212 

V.  Swan  1290 

i;.  Wolf  198 

Kelgour  v.  Wood  1395 

Kellar  r.  Sinton  1204 

Keller  r.  Miller  1587 

V.  Wenzell  1353 

Kelleran  v.  Brown  244,   300 

Kellogg  V.  Ames  848,  853,  870,  943 

V.  Babcock  1390 

V.  Carrico  1835,  1838,  1859 

V.  Frazier  349 

V.  Howell  1639,  1670,  1671 

V.  Rand  1621,  1622 

V.  Rockwell  1114 

V.  Smith  476,804 

U.Wood  68,915 

Kellnm  v.  Smith  266,  312,  376 

Kelly  r.  Austin  433,  439,  444 

V.  Beers  272 

V.  Bryan  310,  324 

V.  Burnham  807 

V.  Falconer  1079 

V.  Mills  214,  462 

V.  Payne  235,  216 

V.  Searing  146  7,  1590 

I'.  Thompson  246,248,312 

Kelsey  v.  Abbott  1445 

V.  Dunlap  537 

Kemp  V.  Earp  275,  328 

V.  Mitchell  1095 

Kendall  v.  Kendall  95 

V.  Roberston  616 


Kendall  v.  Treadwell  1540,  1551,  1560, 

1561, 1562 

Kenicott  v.  Supervisors  834,  843 

Kennard  v.  George  98 

Kennedy?;.  Green    585,  589,  591,  604 

V.  Knight  134,657,  660,  664, 

1204 

V.  Ross  1355 

V.  St.  Paul  &  Pacific  R. 

Co.  1535 

Kennerly  v.  Burgess  690 

Kennett  v.  Plummer  39,  781 

Kennison  v.  Kelsey  71,  677,  1220, 

1335 

Kensington,  ex  parte  180,  181 

Kent  V.  Agard  320 

V.  Ailbritain  242 

V.  Laslcy  320 

Kenton  v.  Spencer  1690 

V.  Vandergrift  312,  977 

Kenyon  v.  Shreck  1333,  1425 

Kerford  v.  Mondel  894 

Kern  v.  Hazier igg  212 

Kernochan  v.  N.  Y.  Bowery  Ins. 

Co.  397,411,419,420,427 

Kerr  v.  Dav  601 

V.  Giimore  244,  248,  312 

Kerrick  v.  SaiR-ry         1099,  1401,  1438 

Kershaw  v.  Kalow  1805 

V.  Thompson  1663 

Kerwin,  ex  parte  90 

Kessler  v.  State  542 

Ketchum  v.  Jauncey  380,  1187 

V.  Pacific  R.  Co.  1535 

Keve  V.  Paxton  429,  446 

Key  V.  Addicks  1718 

V.  McCleary  295 

Keyesr.  Wood  817,821,822 

Kidd  V.  Conway  1 1 1 

V.  Teeple  20,  140,  271 

V.  Temple  669 

Kiernan  v.  Blackwell  1414,  1449 

Kilborn  v.  Robbins      858,  1089,  1093, 

1285,  1304,  1621 

Kille  V.  Efre  539 

Killeran  v.  Brown  246,  300 

Kimball  v.  Blaisdell  561 

f.  Darling  1541 

V.  Goodwin  964 

V.  Johnson  535 

V,  Lewiston  689 

V.  Lewiston    Steam    Mill 

Co.  664,  784 

V.  Lockwood  777 

V.  Myers  1489 

V.  Smith  774,  777 

Kimbrough  r.  Curtis  235 

Iv 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


Kimmell  v.  Willard  1064,  1742 

Kimpton  v.  Bronson  901 

Kincaid  v.  Howe  03 

King  V.  Bronson  1839,  1854,  1909, 

1915 
V.  Duntz  nil,  1751,  1822 

V.  Gilson  679 

V.  Harrington         805,  807,  1457 
V.  Ins.  Co.  712 

V.  King  280,  666,  866 

V.  Little  •  254 

V.  Longworth  1590,  1591 

i;,  McCully  558,  1554 

V.  McVicker    170,  562,  725,  849, 
1397,  1024 
t;.  Meiglien  1146 

V.  Newman  258,  318 

V.  Piatt  1617,  1670,  16  72 

V.  Safford  1350 

V.  State  Mut.  F.  Ins.  Co.        409, 

421 

V.  Stow  1^33 

w.  West  1687 

V.  Wluteley       752,  755,  759,  762 

V.  Wilcomb  4.34,69  7 

V.  Young-  Men's  Ass'n     229,  239 

King,  The,  r.^St.  Michael's  11 

Kingsbury  v.  Buckner  1063 

Kinna  v.  Smith  787,  813,  1388 

Kin  near  v.  Lowell  768 

Kinney  v.  Ensign  919 

V.  McCleod  1359,  1444 

V.  M'CuUough  733 

Kinsley  v.  Abbott  704 

V.  Ames  1  767 

Kinsman  ?'.  Barker  1143 

Kipp  ?;.  Brandt  1412 

Kirby  v.  Childs  1336,  157  7 

V.  Fitzgerald  1939 

Kirk  V.  Fort   Wayne    Gas   Light 

Co.  1718 

Kirkham  v.  Boston  191,  196,  207 

V.  Dupont  10  74 

Kirkpatrick  v.  Smith  1105 

Kii'lcAvood  V.  Thompson         1876,  1884 

Kiser  v.  Heuston  542 

Kitchin  v.  Lee  104 

Kittle  V.  Van  Dyck      464,  1374,  1375, 

1421,  1426 

Kittredge  v.  Bellows  1258 

Klapworth  v.  Dressier     751,  762,  1711 

Klinck  V.  Price  264,  319,  663 

KUne  V.  McGuckin  3  78 

Klock  t).  Cronkhite        871,  876,  1751, 

1855,  1899 

V.  Walter  293,  332 

92 

Ivi 


Knapp  V.  Burnham       1498,  1351,  1619 
V.  Smith  111 

Knarr  v.  Conaway  684,  1384 

Kneeland  v.  Smith  1670 

Knell  V.  Green  St.  Building  Ass'n 

460,  461 
Knetzer  v.  Bradstreet  1215 

Knickerbacker  v.  Eggleston  1576 

Knickerbocker   Life    Ins.   Co.    v. 

Nelson  1443 

Knight  V.  Bampfeild  1142 

V.  Bowyer  601 

V.  Cheney  1235 

V.  Knight  136  7 

V.  Majoribanks  711 

V.  Maloney  1644,  1651 

V.  Pocock  1386 

V.  Whitehead  114 

Knisely  v.  Williams  232 

Knowles  v.  Carpenter  983 

V.  Lawton  870,  1331 

V.  McCamly  109 

V.  Rablin      1072,  1395,  1578, 

1680 

Knowlton  v.  Walker       244,  266,  1039, 

1144,  1147,  1156,  1193 

Knox  V.  Easton  18,  739,  777 

V.  GaHigan  788,  1204,  1215, 

1485 

.    V.  Johnston  906 

V.  Lee  901 

V.  Simmonds  898,  1088 

Koch  V.  Briggs  281,  1146 

Kochler  U.Bali  1638 

Koester  v.  Burke  1699,  1902,  1938 

Koger  V.  Kane  1811 

Kohlheim  v.  Harrison  1152 

Kohn  V.  McHatton  497 

Kohner  v.  Ashenauer  1420 

Kornegay  v.  Spicer     1808,  1813,  1876 

Korns  v.  Shaffer  1876 

Kortright  v.  Cady     358,  715,  886,  889, 

893,  1080,  1450 

V.  Smith  1504,  1709 

Kramer  v.  Bank  of  Steubenville      368 

V.  Farmers'  &  Mechanics' 

>       Bank  of  Steubenville     383, 

1187 

V.  Redman  76,  1335,  1577 

Kreichbaum  v.  Melton  1581,  1656 

Kruse  v.  Scripps  66,  676,  703 

Kuhn  V.  Rumpp  288,  339 

Kunkel  v.  Moskel  1403 

Kunkle  v.  Wolfersberger  277,  312 

Kurtz  V.  Sponable  635,  813,  1606 

Kyger  v.  Ryley     40,  1207,  1550,  1769 

Kyle  V.  Thompson  557 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Laberge  ?>.  Chauvin 
Lackey  v.  Bostwick 
V.  Holbrook 
Lacon  v.  Allen 

V.  Davenport 
Lacoste  v.  West 
Lacy  V.  Tomlinson 
Ladd  V.  Ruggles 

V.  AVigsin 


817 

292 

1289 

180,  182 

22 

1338 

972 

1324 

796 


Ladue  v.  Detroit,  &c.  E..  R.  Co.      364, 

369,  372,  669 

La  Farge  v.  Van  Wagenen  1639 

La  Farge  Fire  Ins.  Co.  v.  Bell        572, 

590, 1621 

Laflin  v.  Crosby  665 

V.  Griffiths  44  7,  454,  455 

Lagdon  v.  Paul  1460 

Laing  v.  Martin  648 

Lake  v.  Doud  82,  168,  556 

V.  Thomas  1166 

Lamar  r.  Jones  1144 

Lamb  v.  Cannon  466 

V.  Foss  668 

V.  Montague         792,  874,  1067, 

1072,  10S6 

V.  Richards  •  1333 

Lambert  v.  Hall  354 

V.  Leland  969 

V.  Nanny  572 

Lamerson  v.  Marvin  1858 

Lamont  v.  Stimson  580 

L'Amoureux  v.  Vandenburgh  603 

Lamporte  v.  Beeman  222 

Lamprey  v.  Nudd  808 

Lampson  v.  Arnold  627 

Lamson  v.  Drake        1065,  1086,  1088, 

1094 

V.  Sutherland  1077 

Lancaster  v.  Dolan  129 

V.  Smith  1365 

Lancy  v.  Duke  &  Duchess  of  Athol 

1628 
Lander  v.  Arno  1222 

Landon  v.  Burke  1541,  1556,  1562 

Landrum  v.  Union  Bank  of  Mo.      186, 

1915 
Lane  v.  Collier  466 

V.  Conger  1617 

V.  Davis  606,  821 

V.  Dickerson  315 

I'.  Erskine  1414 

V.  Hitchcock  696 

V.  King  697,  780,  1658 

V.  Ludlow  223 

V.  Shears  244,  324 


Lanfair  v.  Lanfair       69,  242,  244,  393 

Langdon  v.  Buel  817 

V.  Gray  647 

V.  Keith      817,  821,  822,  827 

V.  Paul  687 

I'.  Stiles  1563 

Lange  v.  Jones  1440 

Langley  v.  Bartlett  924,  933 

Langridge  v.  Paine  1186 

Langston,  ex  parte  181,  183 

Langton  v.  Horton  149,  275,  277 

V.  Langton  1439 

Lannay  v.  Wilson  1382 

Lanning  v.  Smith  1072,  1095 

Lansdown  i'.  Elderton  1642 

Lansing  v.  Albany  Ins.  Co.  1609 

V.  Capron  1351 

V.  Goclet        1228,  1539,  1573, 

1882 

V.  McPherson  1639,  1640 

Lansta£fe  v.  Fenwicke  1526 

Large  v.  Van  Doren      357,  943,  1383, 

1602 

Larkey  v.  Holbrook  675 

Larned  v.  Clarke  720,  1256 

Lash  V.  Edgerton  563 

Lass  V.  Sternberg  1745,  1880 

Lasselle  v.  Barnett  734,  927 

Latham  v.  Blakely  435 

V.  McCann  1504 

V.  Staples  214 

V.  Whitehurst  1752 

Lathrop  v.  Blake  435 

V.  Godfrey    1496,  1497,  1506, 

1507 

V.  Heacock  1420 

Latimer  v.  IMoore  1530 

Latter  v.  Dashwood  1140 

Lauderdale  v.  Hallock  381 

Launey  r.  Wilson  1660 

Lautz  V.  Buckingham  618 

Lavender  v.  Abbott  191,  210,  220 

Laverty  v.  Moore  138,  1655 

Lavillebeuvre  v.  Frederic  621 

Law  V.  Glen  1519 

Lawley  v.  Hooper  1153 

Lawrence  v.  Clark  458,  629 

V.  Cornell  1649 

V.  Farmer's   Loan    & 

Trust  Co.  271,  1743,  1751, 
1767,  1827,  1863 
V.  Fellows  1716 

V.  Fletcher    63,  1261,  1269, 
1270 
V.  Fox  757,  758,  1713,  1721 
V.  Knapp  817 

V.  Lawrence  100,  1381 

Ivii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Lawrence  v.  Stratton  579,  808 

V.  Tucker  379 

Lay  V.  Gibbons  1618 

Layard  v.  Maud  604 

Layman  v.  Whiting    1751,  1893,  1894 

Leach  v.  Beattie  557 

Leahigh  v.  White  264,  266,  808 

Leahy  v.  Arthur  1527 

Learned  v.  Foster      1268,  1741,  1843, 

1885,  1904,  1919 

Leatherdale  v.  Sweepstone  1088 

Leaton  v.  Slade  1643 

Leavitt  v.  Pell  1486 

r.  Pratt  972 

Le  Beau  v.  Glaze  889 

Ledford  v.  Smith  191,  198 

Ledlie  u.  Vrooman  109,  110 

Ledrum  v.  Union  Bank  of  Mo.       1922 

Ledyard  v.  Butler  14 

V.  Chapin  889,  943,  1898 

V.  Phillips  1650 

Lee  V.  Evans  7,  288,  323 

V.  Kirkpatrick  683 

V.  Mason  1742,  1829 

V.  Monroe  603 

V.  Parker  1589 

V,  Woodworth  66 

Leech  v.  Bonsall  427 

Leeds  v.  Cameron  365,  366,  620 

Lees  V.  Whiteley  401 

Leet  r.  McMaster      1751,  1839,  1906, 

1911 

Lefevre  v.  Larraway  1639,  1640,  1670 

Leffler  i>.  Armstrong  1780,1838 

Leggett  V.  Bullock  467,  512,  573 

V.  Edwards  24  7 

V.  McCarty  1502 

V.  Mut,  Life  Ins.  Co.         1397, 

1401 

Lehman  v.  Marshall  150,  151 

Leiby  v.  Wolf  557 

Leigh  w.  Lloyd  1455,1766 

Leighton  v.  Preston  34 

Leith  V.  L-vine  650,  1044 

Leivis  V.  Boskins  173 

Leman  v.  Newnham  1194,  1197 

Lemon  v.  Staats  543 

Le  Neve  v.  Le  Neve  570 

Lenihan  v.  Hamana  1233,  1438 

Lennigs'  Estate  752 

Lennon  v.  Parker  1254 

V.  Porter  1263 

Lenox  v.  Reed  62,  1406,  1769 

Lent  V.  Shear  1203,  1509 

Lents  V.  Craig  1613 

Leonard  v.  Morris      1414,  1432,  1433, 

1709,  1717 

Iviii 


Leonard  v.  Villars 

Lesley  v.  Johnson 

Lester  v.  Barron 
V.  Hardesty 

Letts  V.  Hutchins 

Leveridge  v.  Forty 

Levert  v.  Redwood 

Leving  v.  Will 

Levingston  v.  Mildrum 

Leviston  v.  Swan 

Levy  V.  Mentz 
V.  Merrill 
V.  New  York 

Lewis  V.  Babb 

V.  Boskins 
V.  Capertoa 
r.  Conover 
V.  Covilland 


655,  1420 

631 

1491 

785 

1071,  1215 

1557 

1468,  1619 

467 

1600 

1324,  1574 

497 

913 

695 

1306 

226,  1449 

201 

936,  991 

212 


V.  De  Forest     70,  343,  380,  387 

V.  Hawkins  226 

V.  Nangle  1062,  1418 

V.  Owen  1060 

V.  Perry  232 

V.  Richey  1187,  1188 

V.  Smith  1421,  1439,  1440, 

1445,  1589 

V.  Wayne  376 

V.  Wells  1723,  1786,  1896 

Lichtv  V.  McMartin  1220,  1336 

Liddell  v.  Rucker  497 

Lieby  v.  Wolf  562 

Lies  V.  De  Diablar  709  • 

Life  Ins.  Co.  v.  Howard  889 

Liford's  case  433 

Ligget  V.  Bank  of  Pa.  678 

Lightfoot  V.  Wallace  626 

Lillibridge  v.  Tregent  812 

Lilly  V.  Palmer  740,  865 

V.  Quick  966 

Limerick  v.  Voorhis  1144 

Lime  Rock  Bank  v.  Phetteplace     1923 

Lincoln  v.  Emerson  682,  789,  1251 

V.  Parsons  300,  1282 

V.  Wright  284,  328 

Lindauer  v.  Cummings  293 

Lindley  v.  Sharp  297 

Lindsey  v.  Bates  212,  216 

Lingan  v.  Henderson  226 

Linthicum  v.  Tapscott  218 

Linville  v.  Bell  1229 

V.  Savage  207 

Lippold  V.  Held  924,  926 

Litchfield  v.  Ready  '  16 

Lithauer  v.  Royle  1688,  1708 

Littell  V.  Zuntz  1640,  1670 

Little  V.  Brown  193,  207 

V.  Little  769 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


Little  V.  Riley  656,  1293,  1300 

Littk'juhn  r. 'Gordon  1209 

Littluwort  V.  Davis  303 

Livingston  v.  Kctelle  537 

Livingstone  v.  Mildrum  1351,  1579, 

1G16,  1687 

V.  New  kirk  222 

Llewellin  v.  Mackworth  1195 

Lloyd  r.  Frank  1673 

V.  Jolines  1401 

V.  Lander  1077,  1438 

V.  Passingham  1411 

Lock  V.  Fulford'  1620,  1621 

Locke  V.  Palmer  251,  279,  286 

Lockett  V.  Hill  1794,  1876 

Lockwood  V.  Beckwitli  1496 

V.  Benedict  1408 

V.  Lockwood  1154 

V.  Marsh  8  74 

V.  Mitchell  658,  1916 

V.  Sturdevant  848 

V.  Turner  1776 

Lockyer  v.  Jones  901,  1088 

Lodge  V.  Tiirman  288,  324 

Lofsky  V.  Maujer  669, 1527, 1530,  1536 

Loftusu.  Swift  1602 

Logan  V.  Williams  1575 

Lokerson  v.  Stillwell  308 

Lomax  v.  Bird  1055,  1059 

V.  Hide  1606 

London  &  Westminster  Loan  and 

Discount  Co.  v.  Drake  440 

Long  V.  Burke  198 

V.  Long  1593 

V.  Pace  221 

V.  Ptogers  1848,  1908 

Longan  v.  Carpenter  839 

Longbottoni  v.  Berry  437 

Longstafi'v.  Meagoe  428,  433 

Longwith  v.  Butler  1767 

Longworth  v.  Flagg  1222 

V.  Taylor  1204 

Lonquct  v.  Seawen  3,  1153 

Looker  v.  Peckwell  149 

Loonier  u.  Wheelwright  104,  114, 

848,  855,  951,  958 

Loomis  V.  Donnovan  1190 

V.  Eaton  1493 

V.  Loomis  309 

V.  Stuyvesant  1411 

V.  Wheeler  1666 

Lord  V.  Doyle  582 

V.  Lane  848 

V.  Morris  1146,  1207,  1441, 

1509 

Lord  Carbery  v.  Preston  1198 

Lord  Middleton  u.  Eliot  1123 


Lord  Portmore  v.  Morris  284 

Lord  Redesdale  v.  Bligh  1192 

Lord  St.  John  v.  Boughton  1171 

Loring  v.  Cooke  900,  1088 

Losey  v.  Sampson  588 

V.  Simpson     560,576,  597,  601, 
842 
Lot  r.  Thomas  68 

Loucks  V.  Van  Allen  1684 

Loud  V.  Lane  848,  868,  1307 

Louis  l:  Covilland  207 

Love  V.  Sierra  Nevada,  &c.  Mining 

Co.  130,  169 

Lovejoy  v.  Bowers  120 

Lovell  V.  Farrington  1098 

V.  Leland  950 

Lovering  v.  Fogg  245 

Lovett  V.  Dimond  641,  832 

Low  V.  Allen  1203,  1207,  1509 

V.  Anderson  113 

V.  Henry  241,  288 

V.  Pew  136 

V.  Purdy  1751,1822 

V.  Smart  881 

Lowe  V.  Morgan  1368 

Lowell  V.  Daniels  106,  1340 

V.  North  1220 

V.  Schenck  1658 

V.  Shaw  699 

Lowndes  v.  Chisholm  1127,  1615 

Lowry  V.  Hard  1503 

V.  Morrison  1233 

V.  Tew  1066 

Lowther  r.  Carlton  582 

Lucas  V.  Darrien  183 

u.  Dennison        1164,1168,1169 

U.Harris  817,1469 

Luce  V.  Hinds  1432,  1709 

Luch's  appeal  187,  546 

Luckey  v.  Gannon  407 

Ludington  v.  Gabbert  232 

V.  Harris  745 

Ludlow  V.  Lansing  1663 

V.  Ramsay  1800 

Luke  V.  Thomas  1171 

Lull  V.  Matthews  54,  687 

Luralcy  v.  Robinson  1229 

Lund  V.  Lund  16,  245,  265,  307 

Luning  v.  Brady  1406 

Lunn  V.  Thornton  149 

Lupton  V.  Almy  1124 

Lusk  V.  Hopper  213,  232 

Lvdston  V.  Powell  1767,  1894 

Lvford  r.  Ross  787 

Ljle  V.  Ducomb         370,  379,  383,  609 

Lyman  r.  Little  1080,1440 

V.  Lyman  1092,  1621,  1624 

lix 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Lyman  v.  Sale 

1351 

V.  Smith 

GOG 

Lynch  v.  Dalzell 

401 

V.  Livino;stone 

535,  538 

V.  Utica  Ins.  Co. 

1G6 

Lynde  v.  Budd 

104,  105 

V.  O'Donnel  1584,  1585,  1663 

V.  Rowe  439 

Lyon  V.  Elliott  1642 

V.  Ewings  134 

V.  Mcllvaine  89,  627,  661,  848 

V.  Perry  1465 

V.  Sanford  1411,  1436,  1558 

Lyon's  appeal  793 

Lyons  v.  Field  1737 


M. 

MacDonald  ?).  Walker  1787 

Machite  v.  Wanless  70,  367 

Macintosh  v.  Thurston  375,  466 

Mack  V.  Grover  1420 

V.  Wetzlar  20 

Mackenzie  v.  Gordon  906 

Mackie  v.  Lansing  1204 

Mackreth  v.  Symmons     189,  197,  198, 

204,581 
Macomber  v.  Cambridge  Mnt.  F. 

Ins.  Co.  396,  406,  425 

Madison    Av.    Ch.   v.    Oliver    St. 

Ch.    125,  715,  716,  1129,  1131,  1135 
Madison,  &c.  Plank  Road  Co.  v. 

Watertown  Plank  Road  Co.         134 

Maffitt  V.  Rynd  323,  365 

Magee  v.  Beatty  542 

V.  Carpenter  1  769 

V.  Magee  466 

V.  Sanderson  1462 

Magill  V.  Hinsdale  777 

Magnusson  v.  Johnson     241,  265,  293, 

332,  335 
Magruderi;.  Eggleston        1181,1344, 

1616 

V.  Offutt  1414 

V.  Peter  232 

V.  State  Bank  610,  611 

Mahew  v.  Crickett  1068 

Mahone  v.  Williams    1140,  1615,  1670 

Mahoney  v.  Middleton  1654 

Main  v.  Alexander  533 

V.  Scharzwaelder  '  428,  433 

Major  V.  Jackson  1745 

Malcolm  v.  Allen  76,  1086,  1478,  1616 

V.  Montgomery  1526 

Malins  v.  Brown  972 

Mallett  V.  Page  966 

Ix 


Mallory  v.  Hitchcock  848,  870 

V.  Marriner  964 

V.   West    Shore    Hudson 

River  R.  Co.  1188 

Malnisley  v.  Milne  448 

Manaham  v.  Varnum  799,  1300 

Mandeville  v.  Welch  1 79 

Manhattan  Brass  &  Manuf.  Co.  v. 

Thompson  111 

Manhattan  Co.  v.  Everston  458 

Manigault  v.  Deas  1588 

Manlove  v.  Bale  284 

Manly  v.  Slason         191,  198,  204,  207 

Mann  v.  Best       619,  1745,  1898,  1910 

V.  Cooper  1450,  1711 

V.  Earle  1253,  1273,  1287 

V.  Falcon  52,  316,  548 

V.  Richardson  107  7 

Manning  v.  Burges  897,  1088 

V.  Markel  1064 

V.  McClure  458 

V.  McClurg  1577,  1590,  1591 

V.  Westeriie  908 

Mansfield  v.  Mansfield  1792 

Mansony  v.  U.  S.  Bank  18,  777 

Mansur  D.  Willard  1917 

Mannfacurers',  &c.  Bank  v.  Bank 

of  Pa.  244,  312 

Manufacturers'  &  Merchants' 

Bank  v.  Bank  of  Pa.  253 

Manufacturing  Co.  r.  Price  1396 

Maples  V.  Millon  434,  441,  697 

Mapps  V.  Sharpe  817,  1876,  1910 

JNIara  v.  Pierce  600 

IMarchington  v.  Vernon  762 

Marcy  v.  Dunlap  94,  98 

Marden  v.  Jorden  675,  1116 

Marine    Bank    v.    International 

Bank  606,  1182 

Markel  v.  Evans  1433,  1587 

Markell  v.  Eichelberger  934 

Markey  v.  Langley     1865,  1866,  1870, 

1872 

Markham  v.  O'Connor  734 

Markle  v.  Rapp  936 

Markoe  v.  Andross  229 

Marks  v.  Marsh  1420 

?;.  Pell    248,309,340,1153,1171 

Markson  v.  Haney  1232 

Marlatt  v.  Warwick  332 

Marquat  v.  Marquat  212 

Marriott  v.  Givens       1322,  1443,  1773 

V.  Handy  972 

Marryat  v.  Marryat  1225 

Marsh  v.  Austin  393,  701 

V.  Lee  1082 

V.  Morton  1841,  1924 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Marsh  v.  Pike          751,  755, 

768,  1380, 

1713 

V.  Ridgway 

1612,  1672 

V.  Turner 

191,  205 

Marshall  v.  Billingsley 

827 

V.  Fisk 

467 

V.  Maury 
V.  Moore 

1333 
1621 

V.  Stewart 

244, 1046 

V.  Wing 

901,  902 

V.  Wood 

848,  1361 

Marston  v.  Brackett 

603,  624 

V.  Marston       951, 

1227,  1654 

Martin  v.  Beatty 

147 

V.  Bowker 

1192,  1195 

V.  Franklin  F.  Ins, 

Co.         408 

V.  Harrison 

1359 

V.  Jackson           667 

,  710, 1194, 

1211,  1355 

V.  McReynolds  817 
V.  Noble           1395, 

1382,  1384 
1396,  1420 

V.  Reed 

1734 

V.  Righter 

683 

V.  Wade 

1337 

Martindale  v.  Smith 

886 

Martineau  v.  McCollum 

814,  817, 

834,  84 

2,  904,  1487 

Marvin  v.  Chambers 

612 

V.  Prentice 

266,  1095 

V.  Titsworth           62,  241,  281 

V.  Vedder 

944 

Marx  V.  Marx 

777 

Maryland,  &c.  Co.  v.  Wingert          935 

Maryland  Perm.  Land   & 

Build. 

Soc.  of  Bait.  V.  Smith 

1614,  1866 

Maryot  v.  Renton 

1513 

Mascarel  v.  Raffbur 

1463 

Masich  v.  Sheai'er 

205 

Mason  v.  Ainsworth 

807,  1789 

V.  Barnard 

75 

V.  Daly 

624,  968 

V.  Hearne 

244 

V.  Lord 

842,  1494 

V.  Moody 
V.  Payne 
V.  York 

60,267 
1621 
1385 

Massaker  v.  Mackerley 

Massey  v.  Papin 

Mass.  Hosp.  Life  Ins.  Co. 

1190,  1489 
138,  679 
V.  Wil- 

son 

777 

Massie  v.  Sharpe 

1699,  1700 

V.  Wilson 

1626,  1680 

Master  v.  Miller 

90 

Matcalm  v.  Smith 

1395 

Mather  v.  Fraser 

448,  450 

Matheson  v.  Clark 

1928 

Mathew  v.  Blackmore 

1225 

Mathews  v.  Aiken  558,  737 

V.  Duryee  1693,  1939 

V.  Hey  ward  842 

Mathewson  v.  Western  Assurance 

Co.  419 

Matson  v.  Capelle  630 

V.  Swift  890 

Matteson  v.  Thomas    874,  1333,  1620, 

1621,  1624 

Matthews  v.  Wallwyn  1487 

Matthie  v.  Edwards     1829,  1864,  1906 

Mattix  V.  Weand  191,  207 

Mauldin  v.  Armistead  151,  1790 

Maule  V.  Duke  of  Beaufort  1406 

Maupin  v.  McCormick  198 

Mans  V.  McKellip  1606 

Mavrich  v.  Grier         1397,  1421,  1424 

Maxfield  v.  Patchen  252,  293,  338 

Maxwell  v.  Mountacute  321 

May  V.  Borel  584 

V.  May  1633,  1669,  1676 

V.  Rawson  1331 

Mayburry  v.  Brien  4C5 

Mayer  v.  Salisbury 

V.  Wick 
Mayham  v.  Coombs 


1708 

1608 

207,  208,  463, 

513,  573 

883 

785 


Mayhew  v.  Crickett 
V.  Hardesty 
Maynard  v.  Hunt    889,  891,  892,  901, 
9  72,  1298, 1304 
V.  Maynard  539 

Mayo  17.  Fletcher  667,  670,  771 

V.  Tomkies  1414,  1418 

Mayor,  &c.  of  Baltimore  v.   Wil- 
liams 579 
McAlister  v.  Jerman                644,  1493 
McAlpine  v.  Burnett  205 
McArthur  v.  Franklin          1067,  1353, 
1407,  1420 
McBride  v.  Farmers'  Bank  of  Sa- 
lem                                                  1389 
McBurney  Wellman                   241,  331 
McCabe  u.  Bellows         666,792,1067, 

1098 

V.  Farnsworth  791 

V.  Grey  557 

V.  Swap     666,  740,  861,  866 

McCall  V.  Yard  1395,  1396 

1  McCammon  i'.  Worrall  978 

;  McCandless  v.  Engle        538,  787,  828 

I  McCandlish  v.  Keen  191 

McCanogher  v.  Whieldon  1791 

McCarron  r.  Cassidy      261,  287,  1127 

McCarthy  v.  Garraghty  1710 

V.  Graham  1351,  1709 

V.  McCarthy  339 

Ixi 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


McCarthy  v.  Peake  1526 

V.  White  1509 

McCasliii  V.  The  State      232,  238,  684 

McCkne  v.  White  277,  282,  302 

McClennyv.  Floyd  316 

McClintic  v.  Wise  235,  236 

McClintock  v.  McClintock       277,  331 

McClure  v.  Burris  4  72 

V.  P^ngelhardt  1652 

V.  Harris  207 

V.  Roman  372 

McClurg  V.  Phillips  168 

McClurkan  v.  Thompson  250,  312 

McCollough  V.  Colby  1478 

McComb  V.  Wright  1613 

McConihe  v.  MeChirg  92 

McConnel  v.  Holobush  1114 

McConnell  v.  Scott  1187 

M'Cormick  v.  Digby  814,  913,  924, 

986 

V.  Leonard  580 

V.  Wheeler  589 

V.  Wilcox  1580 

Mc Cotter  v.  Joy  1668,  1673 

McCoy  V.  O'Donnell  1450 

McCrackeu  c.  Heyward  1321 

V.  Valentine       1467,  1588 

McCrackin  v.  Wright  679 

McCraney  v.  Alden  620,  634 

McCrary  r.  Austell  1464 

McCue  t'.  Smith  177 

McCnllough  V.  Indiana  Mut.  Fire 

Ins.  Co.  422 

McCuUum  V.  Hinckley  874 

V.  Turpie  1621 

McCumber  v.  Oilman  1126,  1325,  1333 
McCurdy  v.  Agnew  788 

V.  Clark  1742 

McCurdy's  appeal  127,  1354,  1443 

McDaniels  v.  Colvin        343,  364,  367, 

369,  372 
V.  Flower  Brook  M.  Co. 

533,  869 

V.  Laphara  918 

McDermott  v.  Burke  776 

McDole  (^  Purdy  191,194 

McDonald  v.  Black  401 

V.  Hulse  926 

V.  McDonald  924 

V.  McLeod  266,  310 

V.  Sims  1195 

V.  Whitney  1621 

McDonough  v.  Cross  207 

V.  O'Neil  300,  332 

V.  Shewbridge  1108 

V.  Squire  300,  342 

McDougal  V.  Downey  1577 

Ixii 


McDougald  v.  Capron  1059,  1066 

McDowell  V.  Fisher  612,  1490 

V.  Jacobs  1381 

V.  Lloyd      1335,  1577,  1707 
McElmoyle  v.  Cohen  1204 

McElmurray  v.  Ardis  1334 

McElrath  V.  Pittsburg  &  Steuben- 

ville  Pt.  R.  Co.  1354,  1383,  1443 

McFadden  v.  Fortier  ^  1355 

McGan  v.  Marshall  '     250 

Mc  Gee  ?;.  Davie  1711 

V.  Fitzer  151 

V.  Smith  1654,  1655 

McGill  V.  Gritlin  1606 

McGiven  v.  Wheelock     848,  863,  876, 
943,  948,  951 
McGlaughlin  v.  O'Rourke  1226 

McGonigal  v.  Plummer  207 

McGowan  v.  Branch  Bank  of  Mo- 
bile    1322,  1391,  1443, 
1773 
V.  Smith  464 

McGown  V.  Sandford  1634 

V.  Wilkins  1663 

r.  Yerks  1396,  1419 

McGready  v.  Harris  1233 

V.  McGready  357 

McGregor  v.  Hall  1769 

V.  McGregor  1381 

V.  Mueller  1499 

McGuffey  v.  Finley  1373 

McHendry  v.  Reilly  193 

McHenry  v.  Cooper  1430 

Mclndoe  v.  IMorman  1541 

Mclntier  v.  Shaw  245,  250,  1064 

Mclntire  v.  Norwich  Fire  Ins  Co.   424 
Mclntyre  v.  Humphreys  309,  335 

V.  Whittield  668 

V.  Williamson  976,  1388, 

1414 
McKay  v.  Green  220 

McKenzie*  v.  Baldridge  240 

McKernan  v.  Neff        1425,  1431,  1646 
McKillip  t'.  McKillip  194 

McKim  V.  Mason         34,  446,  449,  6  70 
McKinney  v.  Miller         278,  279,  595, 
1375,  1457,  1621 
McKinster  v.  Babcock  350,  379 

McKinstrey  v.  Conly  712 

V.  Mervin  1081,  1563 

McKircher  i'.  Hawley  771 

McKnight  v.  Wimer  1745,  1788 

McKomb  V.  Hankey  1665 

McLain  v.  Smith  1323 

McLane  v.  Abrams  1606 

McLaren  v.  Hartford  F.  Ins.  Co.    398, 

425 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


McLangblin  v.  Cosgrove  617,  646,  1264 
V.  Curts  1063 

V.  Shepard  245 

McLami  i\  AVright  310 

McLaurie  v.  Thomas  207,  212 

McLean  v.  Lafayette  Bank     722,  726, 
966,  1380,  1929 
V.  Tompkins  1087 

V.  Towle  1082,  1087,  1380 

McLcmore  v.  Mabson  1503 

McMillan  v.  llichards      20,  889,  1085, 
1543,  1654 
McMurphey  v.  Minot  42,  785 

McXair  v.  Lot  1144,  1195 

]\IcXees  V.  Swaney  268 

McNeil  V.  Call  1265,  1269 

McNeill  r.  McNeill  1636 

V.  Nors worthy  279 

McNew  v.  Booth  1053 

McNie  V.  Call  1266 

McPherson  v.  Housel  1411 

McQuie  V.  Peay  83,  90,  168 

McKeynolds  v.  Munns  1579 

McRimmon  v.  Martin  205 

McSorley  r.  Larissa  811,  1128 

Mc Williams  v.  Brookens  240 

M'Dermot  v.  Laurence  606 

M'Donald  v.  M'Donald  924 

Mead  v.  Lord  Orrery  667 

V.  McLaughlin  1871 

V.  Randolph  316 

V.  York  943,  944 

Meaden  v.  Sealey  1519 

Meador  v.  Meador  185 

Mears  r.  Kearney  210 

Mechanics'  Bank  v.  Bank  of  Ni- 
agara 822,  1701 
t'.  Godwin  120 

Medley  i'.  Elliott  838,  1200,  1202, 

1211,  1414 
V.  Mask  1061 

Medsker  v.  Swaney  1881,  1917 

Meehan  v.  Forrester       309,  341,  1060 
Megary  v.  Funtis  964 

Meigs  V.  Dimock  191 

Meily  v.  Wood  119 

Mell  V.  Mooney  1490 

Mellen  v.  Whipple  762 

Mellish  V.  Robertson  1060 

Mellon's  appeal  515,  545 

Melvin  v.  Fellows  71 

Menard  v.  Crowe  1845,  1904 

Meng  V.  Houser  1621 

Menges  v.  Oyster  1355 

Mentz  V.  Debaven  974 

Menzies  v.  Lightfoot  365 

Mercantile  Mut.  Ins.  Co.  v.  Calebs  411 


Merchants'  Bank  v.  Thomson  1420, 
1421,  1440,  1445,  1589,  1642,  1645 
Merchants'  Fire  Ins.  Co.  r.  Grant  105 
Merchants' Ins.  Co.  v.  Hinman  1710 
V.  Marvin  1604 
Merchants'  Nat.  Bank  v.  Raymond 

1466,  1718 
Meredith  v.  Lackey 
Meriam  v.  Harsen 
Merriam  r.  Barton 

V.  Merriam 
Merriam,  ex  parte 
Merrick  v.  Wallace 
Merrifield  v.  Baker 
Merrill  v.  Bullock 
V.  Chase 
V.  Green 
Merrills  v.  Swift 
Merritt  v.  Bartholick 


Co. 


Co. 


204, 


1425 

533 

1127,  1192 

1262,  1273,  1287 

1621 

529,  552 

417 

671 

886,  946,  947 

761 

70,  343,  540 

44,  804,  805, 

806,  1376 

702,  812 

262,  322 

823,  824 

1063,  1072,  1120 

226,  1449 

893 

601 

1402 

1378 

683 

583 

406 

1620 

1067 

1411 

344, 

458 

1099 

Meux  V.  Bell  579 

Mevey's  appeal  1355,1620 

M'Ewen  v.  Welles         950,  132G,  156  7 

Meysenburg  v.  Schlieper  1806 

Miami,  &c.  Co.  v.  U.  S.  Bank  250,  311 

Michenor  v.  Cavender  538 

Michie  v.  Jeffries  1362,  1448 

Michigan  Ins.  Co.  v.  Brown      70,  345, 

1401,  1404,  1509,  1715 

Michoud  V.  Girod  1876 

Mickle  V.  Rambo  1631,  1691 

Mickles  v.  Dillaye  1127,  1128 

t'.  Townsendl  4,  842,  865,  867 

Middlesex  t'.  Thomas  '  966,  969 

Middletown  Sav.  Bank  v.  Bates        22 

Mildred  v.  Austin  1069 

Miles  V.  Blanton  580 

V.  Gray  817 

V.  Smith  1414,  1422 

Ixiii 


V.  Bowen 

V.  Brown 

V.  Harris 

V.  Hosmer 

I'.  Judd 

r.  Lambert 

V.  Northern  R 

V.  Phenix 

V.  Wells 
^lershon  v.  Mershon 
]\Iertins  v.  Jolliffe 
Merwin  v.  Star  F.  Ins. 
jNIesservey  v.  Barelli 
Messiter  v.  Wright 
Metcalfe  v.  Pulvertoft 
Metropolitan  Bank  v.  Godfrey 


374, 


V.  Offord 


TABLE   OF    CASES. 


Reference  is  to  Sectious. 


Miles  V.  King 

463 

Millard  v.  Baldwin 

762 

Millaudon  v.  Brugiere 

1605 

Miller  v.  Aldrich 

400,  402 

V.  Avery 
V.  Bingham  . 

1502 
603 

V.  Burroughs 

1141 

V.  Case 

1610 

V.  CoUyer 
V.  Donaldson 

1643 
919 

V.  Fichthorn 

861 

V.  Finn 

1439 

V.  Gregory 
V.  Hamblet 

1502 
1361 

V.  Henderson 

1373. 

1375 

V.  PIull  1634,  1852,  1873, 

1874 

V.  Kemley  1458 

V.  Kolb  98,  1609 

V.  Lincoln  1123 

V.  Lockwood  64,  612 

V.  Moore  165 

V.  Rutland,  &c.  R.  Co.  127, 

156,  653,  821 

V.  Sharp  1587 

V.  Stokely  311 

V.  Thatcher  316 

V.  Thomas      266,  279,  282,  293 

V.  Tipton  136 

V.  Wack  726,  966 

V.  Watson  740 

V.  Whittier  377   1084 

Millet  t;.  Davy  1123,  1125 

Milliken  v.  Armstrong  429,  445 

V.  Bailey  1050,  1123 

V.  Ham  0  84 

Milliman  v.  Neher  150 

Mills  V.  Banks  129 

V.  Comstock  549 

V.  Darling  244 

V.  Dennis  1539,  1564,  1572, 

1573 

V.  Fowkes  906 

V.  Kellogg  908 

V.  Mills  251,  289 

V.  Ralston  1637,  1647 

V.  Shepard  65,  699 

V.  Van  Voorhies  464,  106  7, 

1420,  1645 

V.  Watson  768 

Millspaugh  v.  McBride  848,  869 

Milner  v.  Ramsey  220 

Milroyu.  Stockwell  1382,  1415 

Milton  V.  Colby  142 

Milwaukee  &  Minn.  R.  R.  Co.  v. 

Milwaukee  &  West.  R.  R.  Co.     159, 

1537 

Ixiv 


Mims  V.  Macon  190,  193,  198 

V.  Mims     481,  552,  1405.  1412, 

1514 

Miners.  Beekman   1047,  1095,  1128, 

1147,  1156,  1158 

V.  Stevens  718,  721 

Miners'  Trust  Bank  u.  Roseberry  1493 

Mines  v.  Moore  1459 

Mingus  V.  Condit  458 

Minkler  v.  Minkler  702 

Minn.  Co.  v.  St.  Paul  Co.        452,  1672 

Minor,  ex  parte  1638,  1653 

Minor  v.  Woodbridge  1060 

Minot  V.  Eaton  1470 

V.  Sawyer  1105,  1300 

Mirick  v.  Hoppin  774 

Mitchell  V.  Bartlett      669,  1516,  1653, 

1659 
V.  Black  146 

V.  Bogan         687,  1202,  1414, 
1757,  1767 
V.  Burnham    72,  76,  352,  803, 
1088,  1270 
V.  Butt  214 

V.  Clark  941 

V.  Cook  791 

V.  Gray  1570 

V.  Ladew  1699,  1703 

V.  McKenney  1615 

V.  Smith  599 

V.  Winslow  149,  152,  153 

Mitzner  v.  Russel  612 

Mix  V.  Andes  Ins.  Co.  of  Cincin- 
nati 397 
V.  Cowles                                      367 
V.  Hotchkiss                        358,  409 
V.  Madison  Ins.  Co.           641,  657 
Mixer  v.  Sibley                                1800 
M'Kecknie  v.  Hoskins                        600 
M'Lean  v.  M'Lellan                           191 
V.  Ragsdale               1187,  1213 
M'Mechan  v.  Griffing                         601 
M'Menomy  v.  Murray                         281 
M'Murray  v.  Conner                           621 
M'Nair  v.  Picotte                        889,  973 
M'Neely  v.  Rucker                              538 
Mobile  Branch  Bank  v.  Hunt          868, 

1638 
Mobile,  &c.  Co.  v.  Huder  1621 

Mobile  &  C.  P.  R.  Co.  v.  Talman  166, 

1482- 
Mobray  v.  Leckie  76 

Model  Lodging  House  Ass'n  v. 

City  of  Boston  850,  1840,  1853, 

1854,  1856,  1866 

Mogg  V.  Baker  152 

Mohn  V.  Hiester  1309 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Monell  V.  Lawrence  1351 

Mom-y  V.  Dorsey  227 

Monk  house  v.  Corporation  of  Bed- 
ford 15G3 
Monroe  v.  Poorman  538 
Montague  v.  Dawes  1783,  1784,  1796, 
1798,  1842,  18G3,  1883, 
1898,  1899,  190G 
V.  Philips                           1102 
Montgomery  v.  Bruere                   16,  43 
V.  Cbadwick        261,  265, 
1122,  1124,  1128, 
1144,  1152 
V.  Dawes                     1883 
V.  Mcf^wen      1804,  1815 
V.  Middleniiss             1653 
V.  Tutt    1429,  1579,  1663 
Montgomery,  ex  parte  429 
Moodey  v.  Haselden                         1631 
Moody  r.  Wright                        149,  152 
Mooniey  v.  Maas                     1420,  1421 
Mooney  v.  Briukley  675 
Moore  v.  Anders                  173,  225,  235 
V.  Beasora            848,  1055,  1064 
V.  Bennett  594 
V.  Benson                                  1269 
V.  Cable   1127,  1132,  1144,  1158 
V.  Chandler                              1624 
V.  Cord     812,  1052,  1084,  1396, 
1406, 1678 
V.  Degraw                     1118,  1122 
V.  Harrisburg  Bank               1 355 
V.  Ivery  335 
V.  Madden  531 
V.  Metropolitan  Nat.  Bank   842 
V.  Moberly  726 
V.  Kagland                                346 
V.  Raymond                              212 
V.  Reynolds                              1715 
r.  Sloan  786 
V.  Starks                        1401,  1414 
V.  Thomas                        467,  532 
V.  Titman           714,  1080,  1123, 
1454,  1469,  1638 
V.  AVade                   250,  282,  296 
V.  Ware                  821,  822,  137  7 
V.  Watson                                  463 
Moores  v.  Ellsworth                          15^4 
Moreland  u.  Barnhart  316 
V.  Richardson  600 
Morey  v.  MoGuire  687 
Morgan  v.  Chamberlain  957 
r.  Hammett                    872,87  7 
r.  Morgan       1153,  1171,  1192 
V.  New  Orleans,  &c.  R.  Co.  656 
V.  Plumb                               156  7 
I'.  Sherwood                        1224 


Llorgan  v.  Wilkins  1337,  1711 

V,  Woodward  702 

Morgenstern  v.  Clees  1181,  1459 

Morley  v.  Morley  1386 

Moroney's  appeal  370,  3  75 

Morrell'f.  Dickey  960 

Morri  v.  Pate  207 

Morrill  v.  Gelston     "  1 740 

V.  Noyes  152,  452 

Mon-is  V.  Buckley  1355 

V.  Day  1259,  1260 

V.  Floyd  1494,  1511 

r.  Islip  1140 

V.  Keyes  538 

V.  Morange  1600 

V.  Mo  watt  1645 

V.  Nixon  266,  285 

V.  Pate  466 

V.  Wadsworth  557 

V.  Watson  129 

V.  Wheeler       1439,  1442,  1450 

Morris  Canal  Company  case  154 

Morrison  v.  Bean  1359,  1443,  1759 

V.  Beckwith  1627 

V.  Brand  265,  26  7,  276 

V.  Buckner  1516,  1526 

V.  McLeod  1123,  1127 

V.  Mendenball  801 

V.  Morrison  595,  901,  936 

V.    Tenn.    Mar.  &    Fire 

Ins.  Co.  426 

Morrow  v.  Turney  163 

Morse  v.  Clayton  924 

V.  Dewey  65 

r.  Goddard  777 

V.  Godfrey  458 

V.  Merritt  671,  1274 

Morton  v.  Noble  28 

V.  Robards  462 

Mosby  f.  Hodge  1776 

V.  State  of  Ark.  90 

Moses   V.    Clerk   of   Dallas    Dist. 

Court  748 

V.  Murgatroyd  309 

Moshier  v.  Meek        191,  196,  199,  212 

Moss  V.  Gallimore  774,  1194 

V.  Green  262 

t'.  Warner  1423.,  1441 

Mott  i;.  Clark  842,  953 

V.  Harrington  250,  317 

V.  Walkley  1640,  1671 

Moulton  V.  Lowe  624 

Mount  V.  Potts  1621,  1631,  1712 

I'.  Suydam  793 

Mountford  v.  Scott  586 

Mowbray  i'.  Leckie  1181,  1168 

Mower  v.  Kip  1593 

Ixv 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Mo  wry  v.  Bishop 
V.  Sanborn 


634,  650 
1751,  1776,  1894, 
1905 
V.  Wood  136,  176,  188 

Moynaban  v.  Moore  893 

M'Queen  v.  Farqubar  583 

Mt.  Vernon  Manuf.  Co.  v.  Sum- 
mit Co.  Mut.  Fire  Ins.  Co.  425 
Muir  I'.  Berkshire                       812,  874 
V.  Gibson                         1414,  1436 
Mulford  V.  Peterson  787,  813,  870,  871 
Mullanpby  v.  Simpson                      1072 
Muller  i;.  Bayly                                  1817 
V.  Wadlington                817,  881 
MulHken  v.  (jraham  580 
Mullin  V.  Bloomer                   1335,  1449 
Mullison's  appeal  86 
Mullison's  Instate                                611 
Mundy  v.  Monroe                   1742,  1905 
V.  Vawter                              1777 
Munn  V.  Bm-ges          1861,  1876,  1877, 
1883,  1885,  1891, 1911 
V.  Lewis                                     532 
Munson  v.  Munson                              887 
Murdock  v.  Chapman       138,  139,  810 
V.  Chenango    Co.    Mut. 

Ins.  Co.  396 

V.  Empie      1639,  1670,  1911 
V.  Ford  606,  1047,  1425, 

1435,  1699 
V.  Giflford  444 

V.  Harris  444 

Murphy  v.  Calley     244,  245,  250,  272, 

273 
V.  Elliott  954 

V.  Farwell  1048,  1439 

V.  People's  Eq.  Mut.   F. 

Ins.  Co.  399 

V.  Purifoy  265 

V.  Trigg  797 

Murray  v.  Able  235 

V.  Ballou  599 

V.  Barlee  107 

V.  Barney  374 

V.  Blackledge  789 

V.  Blatchford  959 

V.  Catlett  802,  1401 

V.  Fishback  915 

V.  Lylburn  843,  846 

V.  Smith  748 

V.  Walker  309 

Murrell  v.  Jones  823 

V.  Smith  1588 

Musgrove  v.  Bonser  572 

V.  Kennell  842 

Musser  v.  Hyde  542,  552 

Mussina  v.  Bartlett      1539,  1563,  1577 

Ixvi 


Mut.    Benefit   Life   Ins.    Co.    v. 

Row  and  541 

Mutual  Life  Ins.  Co.  v.  Boughrum 

1621,  1625 

V.  Dake  553,  554 

V.  Salem         1G85 

V.  Southard  1350, 

1720 

Mutual  Life  Ins.  Co.  of  N.  Y.  v. 

Bowen  1687 

Muzzy  V.  Knight  71 

M'Vay  V.  Bloodgood  822,  1699 

Myer  v.  Beal  1204 

V.  City  of  Muscatine  634 

Myer's  appeal  281,  374 

Myers  i'.  Brownell  848 

V.  Estell  1516,  1521,  1532,  1773 

V.  Hewitt  1353 

V.  Manny  1666 

V.  Meinrath  623 

t>.  Wright  13  78 


N. 


Nagle  V.  Macy         20,  808,  1584,  1673 
Nailer  v.  Stanley  1621 

Nairn  v.  Prowse  207 

Napier  v.  Jones  224 

Nash  V.  Spofford  1305 

Natal  Land  Co.  v.  Good  580 

National  Bank  of  Australasia  v. 

Cherry  180 

National  Fire  Ins.  Co.  v.  Loomis  1613, 

1882 
V.  McKay  1496, 
1502 
National  State  Bank  of  Newark  v. 

Davis  1187 

Neaden  v.  Sealey  1526 

Neal  V.  Kers  570 

Neale  v.  Hagthrop  1127 

V.  Reid  401 

Neel  V.  Clay  225 

Neesom  v.  Clarkson  1129 

Neide  v.  Pennypacker  472 

Neidig  v.  Whiteford  605 

Neilson  v.  Blight  817 

V.  Chariton  Co.  1895 

Neligh  V.  Michenor  136,173 

Nelson  v.  Boyce  364,  372 

V.  Dunn  572 

V.  Everett  1606 

V.  Ferris  813 

V.  Iowa  Eastern  R.  Co.        370 

V.  McPike  1490 

V.  Pinegar  27,  684 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Neptune  Ins.  Co.  v.  Dorsey  1G34, 

1923,   1924 
Nesbett  o.  Fredennick  714 

Nevitt  y.  Bacon  1145,1204,1210 

Newall  V.  Wright  668,  702,  774, 

952,  1116,  1244,  1289 
New  Bedford  Inst,  for  Savings  v. 

Fairhaven  Bank  387 

Newbegin  v.  Langley  106 

Newberry  v.  Bulkley  548 

Newbold  V.  Newbold  24,  1216 

Newbury  v.  Rutter  1225 

Newcomb  v.  Bonhara  7,  277,  1041 

V.  Dewey  1425 

V.  St.  Peter's  Church     1195 
New  England  F.  &  M.  Ins.  Co.  v. 

Wetniore  408 

New  England  Jewelry  Co.  v.  M(^r- 

riain  466,  673,  848,  871 

Newhall  r.  Burt  244,  245,  253,  549 

V.  Lynn  Five  Cents  Sav- 
ings Bank  1933 
V.  Pierce               253,  549,  600 
New  Hampshire  i'.  Williard  352 
New  Haven  Savings  Bank  v.  Mc- 

Partlan  22,  1215 

Newhouse  v.  Hill  1 73 

New   Jersey   Franklinite    Co.  v. 

Ames  1398 

Newkirk  v.  Burson  1717 

Newman  v   Chapman    599,  1373,  1411 

V.  De  Lorimer         1192,  1207 

V.  Fisher  1232 

V.  Home  Ins.  Co.  1440 

V.  Kershaw         657,  660,  745 

V.  Newman  1530 

V.  Ogden  1390 

V.  Samuels  62,  1769 

V.  Selfe  15  72 

New  Orleans  Canal  Co.  r.  Hagan    1226 

Newport,  &c.  Bridge  Co.  v.  Doug- 

1516 
666,  1067 


lass 
Newton  v.  Cook 

V.  Earl  Egmont 
V.  Fay 
V.  McKay 
V.  Wilson 
New  York   Chemical  Manuf.  Co. 

V.  Peck 
New  York   Ins.   Co.  v.  National 

Ins.  Co. 
New  York  Life  Ins.  Co.  v.  White 

543, 
Life  Ins.  &c.  Co.  v. 


1397,  1432 

300,  322 

717 

663 


608 


586 


550 


New  York 

Howard 
New  York  Life 

V.  Rand 


907 


Ins.  &  Fire  Co. 


1663 


New  York  Life  Ins.  &  Trust  Co.  v. 

Beebe  642 

New  York  Life  Ins.  &  Trust  Co.  v. 

Cutler  1576 

New  York  Life  Ins.  &  Trust  Co.  r. 

Milnor  1445,  1576 

New  York  Life  Ins.  &  Trust  Co.  v. 

Smith  472,  791 

New  York  Life  Ins.  &  Trust  Co.  v. 

Staats  532 

New  York  T.   &  M.   Ins.   Co.   v. 

Burrell  1111 

Niagara  Bank  v.  Rosevelt         842,  906 
Nice's  appeal  515,  556 

Nichol  V.  Dunn  213 

Nicholas  v.  Overacker  466 

NicholU'.  NichoU  1668,  1669 

Nichols  V.  Baxter     400,  401,  402,  415, 

1885 

V.  Cabe  315 

V.  Cosset  657 

V.  Glover  212,  217 

V.  Holgate  1436 

V.  Lee  842 

V.  Randall  1406,  1426 

V.  Reynolds  250,  276,  789 

V.  Smith  1223 

Nickson  v.  Toney  315 

Nightingale  v.  Meginnis  648 

Niles  V.  Harmon  1501,  1626 

V.  Ransford        1787,  1832,  1886, 

1902^ 

Nilson  V.  Cluer  1140 

Nixon  V.  Bynum  50 

Nodine  v.  GreenEeld  1397,  1401 

Noe  V.  Gibson  1535 

Noel  V.  Noel  295 

Nolte  V.  Libbert  1462 

Noonan  r.  Lee  1502,  1591 

Nopson  V.  Horton  1080 

Norcross  v.  Norcross  35,  135,  705 

V.  Widgery  601 

Norris  v.  jNIorrison  866 

Norrish  v.  Marshall  HOC 

North  V.  Belden  367 

V.  Crowell  360 

Northampton  Bank  v.  Balliet  805,  831 

Northampton  Paper  Mills  v.  Ames  172 

North  Brit.  Ins.  Co.  v.  Hallett  579,  580 

Nortliington  v.  Faber  117 

North  River  Bank  r.  Rogers         1511, 

1223,  1351 

Northrop  v.  Sumney  1506 

Northrup  v.  Wheeler  1751 

Northup  V.  Cross  175 

Northy  v.  Northy  1282,  1309 

Norton  v.  Lewis  1621 

Ixvii 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


Norton  v.  Stone 

V.  Warner 
V.  Webb 
V.  Williams 
Norton,  Succession  of 
Norvell  v.  Johnson 


822 
963,  1375 
GG8 
460,  462 
913 
212 


Norway  v.  Rowe  1522,  1524 

Norwich  v.  Hubbard  699 

Norwich  F.  Ins.  Co.  v.  Boomer       39  7, 

399,  400,408,  418,  420 

Nosier  v.  Haynes  1590 

Novosielski  ■;;.  Wakefield  1107 

Noy  V.  Ellis  1387 

Noyes  v.  Barnet  1283 

I!.  Clark  76,1184,1471 

V.  Horr  555 

V.  Rich  6  70,  1536 

V.  Sawyer  1368,  1379 

V.  Sturdivant  548,  703 

V.  White  822 

Nugent  V.  Riley  242,  244 

Null  I'.  Jones  1717 

Nunemacher  v.  Ingle  950 

Nute  V.  Nute  680 


O. 


Oakhum  v.  Rutland  1260,  1261 

O'Connor?;.  Shipman  1175 

Odd  Fellows   Sav.  Bank  v.  Ban- 
ton  483 
Odell  u.  Montross                              1046 
Odenbaugh  v.  Bradford           250,  312, 

330 
Ogdenu.  Glidden      1321,  1576,  1621, 

1629 

V.  Grant  271,  244,  1647 

V.  Walters  557, 1321, 1587, 1647 

Ogle  V.  Ship  1079 

O'Hara  v.  Brophy  1683 

V.  Haas  881 

O'Haver  ?).  Shidler  1188 

Ohio,  &c.  Co.  V.  Ross  572 

Ohio  Life  Ins.  Co.  v.  Ledyard  481,  560 

V.  Trust  Co.      1204 

Ohio  Life  Ins.  &  Trust  Co.  v.  Ree- 

der  1187 

Ohling  i;.  Luitjens       1395,  1406,  1414 
Oleott  V.  Robinson  1612,1838 

Olcutt  V.  Bynum         1752,  1846,  1859, 
1865,  1868,  1937 
Oldham  v.  Halley  242 

Olds  ?;.  Cummings  826,  838,  1333, 

1789 
O'Leary  V.  Snediker  936,   1218 

Oliver  V.  Decatur  1520 

Ixviii 


Olmsted  v.  Elder  812,  914,  1633 

Olney  v.  Adams  1293 

Olson  V.  Nelson  663 

Onderdonk  v.  Gray  1123 

O'Neill  V.  Capelle    265,  279,  304,  323, 

357 
Ontai'io  Bank  v.  Sti'ong  1351 

Opdyke  v.  Bartles  1067 

Oppenheimer  v.  Walker  1685 

Orchard  v.  Hughes  1711 

Ord  f.  McKee  817 

V.  Smith  1169 

Orde  y.  Heming  1153 

O'Reilly  V.  O'Donoghue  26  7 

Oriental  Bank  v.  Haskins  827 

Orme  v.  Wright  1878,  1879,  1906, 

1916 

Ormsby  v.  Barr  913 

V.  Tarascon  1822 

V.  Terry  1648 

Ornn  v.  Merchants'  Nat.  Bank        134 

Orr  V.  Hadley  664 

V.  Hancock  380 

Ortl^  V.  Jennings  462 

Orion  V.  Knabb  1039 

Orvis  V.  Newell  569 

Osborne  v.  Benson  924 

V.  Harvey  1526 

V.  Tunis     43,  889,  1388,  1559 

Osbourn  u.  Fallows  1101 

Osgood  V.  Stevens  1325,  1333 

V.  Thompson  Bank  289 

Osterberg  v.  Union  Trust  Co.      1646, 

1649 
Ostrom  V.  McCann  1411,  1636 

Oswald  V.  Legh  916 

Ottawa  Northern  Plank  Road  Co. 

V.  Murray  76,  127 

Otter  V.  Lord  Vaux  864,  1887 

Ottman  v.  Moak  881 

Outten  V.  Grinstead  1493 

Outtrin  i;.  Graves  1811 

Overall  v.  Ellis  1375 

Overton  v.  Bigelow  315,  324,  329, 

1148 

Owen  V.  Cawley  109 

V.  Moore  219 

Owens  XK  Dickenson  108 

V.  Miller  499 

Owings  V.  Beall  1337,  1444 

V.  Norwood  915 


Pace  v.  Chadderdon  716 

Pacific  Iron  Works  v.  Newhall       1490 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Packard  v.  Agawam  Mut.  F.  Ins. 

Co.  399 

V.  Kintrnian  927,  1335 

Packer  v.  Rochester,  &c.  R.  Co.         44 

Padgett  V.  Lawrence  458 

Page  V.  Cooper  129 

V.  Foster  1088 

17.  Pierce  817,  822 

V.  Robinson     455,  G47,  694,  697, 

721,  1262,  1273,  1287 

V.  Vilhac  267 

Paget  V.  Ede  1444 

Paine  v.  Benton  350 

i\  French  603,  813,  817 

V.  Smith  1644 

V.  Woods  671,  709 

Palk  V.  Clinton  1072,  1102,  1401, 

1409,  1414 

Palmer  v.  Carlisle  1368 

V.  Eyre  1208 

V.  Foote  1217 

r.  Forbes  124,452 

r.  Fowley         1081,1251,1258, 

1276,  1285 

V.  Gurnsey      62,  271,  340,   913 

V.  Hendrie  1226,  1861 

V.  Mead   1326,  1444, 1456,  1-182 

V.  Miller  105 

V.  Stevens  1248 

V.  Yager  1440,  1445 

V.  Yates  1487 

Pancoast  v.  Diival        458,  1622,  1625, 

1627 

Pardee  v.  Lindlev  817,  826,  1789 

V.  Van  Anken  792,  1062, 

1064,  1081,  1087 

Parham  v.  Pulliam  635,  652,  656 

Parham    Sewing  Machine  Co.  v. 

Brock  924 

Paris?;.  Hulett  1555,  156  7 

Parish  v.  Gates  2G0,  286 

V.  Gilmanton  42,  808 

V.  Wheeler  156 

Parker  v.  Barker  972 

V.  Baxter  955 

V.  Browning  1535,  1536 

V.  Child  1047 

V.  Clarke  1470 

r.  Fov  204 

I'.  Fuller  1439 

V.  Green  906 

V.  Hill  539 

V.  Jacoby  372 

V.  Jones  1229 

V.  Kane  580 

V.  Kelly  235 

V.  Lincoln  131 


Parker  v.  Mercer  1701 

V.  Osgood  579 

V.  Parker  350 

V.  Parmele  613 

V.  Rochester    &    Syracuse 

R.  Co.  44 

V.  Stevens  1373 

V.  Storts  1658 

Parker  County  v.  Sewell  207 

Parkes,  ex  parte  198 

Parkes  v.  White  1411 

Parkhurst  v.  Cory  1673 

V.  Cuinmings  924,  032,  1141 

V.  McGraw  629 

V.  Northern,  &c.  R.  Co.  154 

Parkinson  v.  Hanbury  1123,  1810, 

1884 
469,  557, 558, 
576 
722,  1621,  1631 
250,  300 
817 
266,  293,  335 
1876 
1878 
533 
1400 
857 
445 
429 
230 
960 
340 


Parkist  i;.  Alexander 


Parkman  v.  Welch 
Parks  V.  Hall 
Parmelee  v.  Dann 

r.  Lawrence 

Parmenter  v.  Walker 

Parnell  v.  Tyler 

Parret  v.  Shaubhut 

Parrott  v.  Hughes 

Parry  v.  Wright 

Parsons  v.  Copeland 

V.  Hind 

V.  Hoyt 

V.  Lyman 

V.  ISIuniford 

V.  Welles     673,  675,  787,  889, 

992,  1052,  1093,  1298 

Partridge  v.  Bere  1211 

V.  Gordon  1307 

r.  Partridge    813,  817,  1355 

V.  Swazey  350 

Paschal  v.  Harris  752 

Paston  V.  Eubank  1411 

Patch  v.  Wilde  1139 

Patchia  v.  Pierce  309,  1088 

Paton  V.  Murray  1381,  1407 

Patten  v.  Accessory  Transit  Co.   1517, 

1521 
I'.  Moore 
V.  Pearson 
V.  Taylor 
Patterson  v.  Ball 

V.  Birdsall 
V.  Clark 
V.  Donner 
V.  Edwards 
V.  Johnston 
V.  Linder 


601 
1876 
1502 
84,  539 
885 
648 
249,  618,  1606 
194 
357,  380 
462 
V.  Triumph  Ins.  Co.  408 

Ixix 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Patterson  v.  Tyler 

V.  Yeaton 
Pattison  v.  Hull 

V.  Powers 
V.  Shaw 
Patton  V,  Page 

V.  Stewart 


96 

1105 

812,  817,  1701 

1223,  1351 

1425,  1439,  1440 

729 

1718 


Patty  V.  Pease         723,  981,  982,  1621, 

1631 

Paulett  V.  Peabody  1651 

Paullinnj  (;.  Barron  18,  1052 

Paxton  V.  Harrier  722 

Payne  v.  Avery  191,  194 

IK  Burnham  111,  1495 

V.  Patterson  241,  323 

Paynter  v.  Carew  1537 

Peabody  v.  Brown  63 

V.  Eastern   Metli.  So.  in 

Lynn  799 

V.  Fenton  828 

V.  Patten  1056,  1067 

V.  Roberts     1147,  1156,  1395, 

1425,  1688 

Peacock  v.  Monk       /  107 

Peake,  ex  parte  202 

Pearce  v.  Foreman  202,  206 

r.  Hall  344 

V.  Morris  1055,  1063 

V.  Pearce  1652 

V.  Savage     972,  1052,  1077, 

1240 

Pears  v.  Laing  1198 

Pearsall  v.  Kingsland        644,  745,  832 

Pearson  v.  Seay  257,  265,  275 

Pease  v.  Benson  788,  1112,  1261 

V.  Kelly  191,  207 

V.  Pilot  Knob  Iron  Co.  39, 1787, 

1895 

V.  Warren  80  7 

Peat  V.  Gilchrist  1500 

Pechaud  v.  llinquet  1717 

Pechin  v.  Brown  357 

Peck  V.  Hapgood  1276,  1284 

V.  Mallams        66,  550,  915,  1390 

V.  Minot  904 

Peck's  appeal  936,  950,  1567 

Peckham  v.  Haddock  16  7,  946 

Pecks  V.  Mayo  657 

Peebles  v.  Reading  580 

Peet  V.  Beers  213 

Pegg  V.  Wisden  262 

Peii'ce  V.  Goddard  143 

Pell  V.  Ulmar       715,  1052,  1093,  1633 

Pelly  V.  Wathen  1137 

Pelton  V.  Farniin  1440,  1442,  1445 

V.  Knapp  802,  943 

Pendleton  v.  Fay  842 

Ixx 


Pendleton  v.  Routh  1163,  1165 

V.  Rowe  1190 

Penman  v.  Hart  544 

Penn  v.  Butler  958 

V.  Lord  Baltimore  1063 

V.  Ott  136 

Penn  Co.  for  Ins.  v.  Austin     129,  241, 

331 

Penniman  v.  Hollis  1285,  1286 

Pennington  v.  Hanby      258,  318,  1060 

Pennock  i\  Coe  152,  452 

Penny  v.  Cook  1898,  1899 

Pensoneau  v.  PuUiam  279 

Pentz  V.  Simmonson  112 

People  V.  Bebee  936 

V.  Bergen  1688 

V.  Irwin  262,  266 

V.  Keyser  958,  959,  1390 

V.  Miner  959 

V.  Organ  90 

V.  Snyder  538 

V.  Ulster  1939 

People's  Bank  v.  Hamilton  Manuf. 

Co.  1411,  1437,  1442 

Pepper  v.  George  200 

Pepper's  appeal  472 

Perdue  v.  Aldridge  467,  1465 

Perdue,  ex  parte  202,  217 

Perine  v.  Dunn  1107,  1108,  1563, 

1566,  1586 

Perkins  v.  Dibble  242 

V.  Drye  712 

r.  Elliott  116 

V.  Gibson  212,  214 

V.  Pitts  972 

V.  Sterne  817,  943 

V.  Swank  204 

V.  Woods  1345,  1414 

Perot  V.  Chambers  497 

Perre  v.  Castro  1582 

Perrin  v.  Reed  665 

Perrine  i\  Poulson  1105 

Perry  v.  Brinton  955 

V.  Carr  1095 

V.  Grant  191,  196 

V.  HoU  130 

V.  Kearns  736,  1494 

V.  Marston  11  71 

V.  McHenry  323,  332 

V.  Medowcroft  262 

Person  v.  Merrick  1393,  1436 

Persons  v.  Alsip  1439 

Peters  v.  Dunnells  1207 

V.  Florence  969 

V.  Goodrich  557,  934 

V.  Jamestown  Bridge  Co.     804, 

808 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Peter  v.  Russell  602,  603 

Peterson  v.  Chemical  Bank     960,  1389 

V.  Clark  244,  687 

Peto  I'.  Hammond       1102,  1406,  1409, 

1410 

Petrie  v.  Wright  163 

Pettee  v.  Case  391,  1260,  1301 

17.  Peppard  762,  919,  920 

Pettengill  v.  Evans  687 

V.  Mather  988 

Pettibone  v.  Edwards  1378,  1412 

I'.  Griswold  70,  344,  36  7 

V.  Stevens  1598 

Peychaud  v.  Citizens'  Bank  558 

Peyton  r.  Ayres  1181,1340 

V.  Peacock  537 

Phares  v.  Barbour  1876 

Phelan  1-.  Olney  822,1701 

Phelps  V.  Canover  217 

V.  Ellsworth  1391,  1583 

I'.  Relfe  991 

V.  Sage  22,  889,  892 

V.  Townslev  705,  787 

Phila.    &   Bait.    Cent.   R.   Co.   v. 

Johnson  677,  1186 

Phila.,    Wil.    &   Bait.    R.    Co.   v. 

Woelpper  152,  452 

Philbrook  r.  Delano  191 

Philbrooks  v.  McEwen  1490 

Philips  V.  Bank  of  Lewiston    472,  805, 

829,  831 

V.  Belden  1705 

V.  Hele  1062 

Phillips  V.  Croft  286 

V.  Green  105 

V.  Hulsizer  266,  269,  308,  1111 

V.  Leavitt  972,  1056 

V.  Pearson  556,  610 

V.  Saunderson  207 

V.  Sinclair  1144,  1158 

V.  Skinner  198 

V.  Thompson  387 

V.  Winslow  152,  155,  652 

Phillipsburg  Mut.  Build.  &  Loan 

Ass'n  V.  Hawk  728 

Philly  V.  Sanders  561 

Phipps  V.  Bishop  of  Bath  1524 

Phoenix  v.  Clark  1661 

V.  Gardner  250,  302,  335 

Phyfe  V.  Riley    13,  19,  702,  715,  1093, 

1205 
Pickard  v.  Sears  602 

Pickett  V.  Barron  458,  476 

V.  Buckner  1693 

V.  Jones  804,  1787,  1788 

Pidgeon  v.  Trustees  of  Schools        744 
Piel  i;.  Brayer  1334,1646 


Pierce  v.  Balkam  1284 

V.  Brown  667 

V.  Emery  149,  157,  452 

r.  Faunce  414,  710,  834,  1487 


V.  George 

445 

V.  Kneeland 

79, 

359, 

1606 

V.  Mil.  R.  Co. 

152 

V.  Potter 

953 

V.  Robinson 

251 

,  288 

V.  Taylor 

597 

V.  Wilcox 

1236 

Pierce,  in  re 

1231 

Pierson  v.  Clayes 

1569 

V.  David 

191 

V.  Hooker 

958 

Pike  I'.  Armstead 

572 

V.  Brown 

765 

V.  Collins 

344 

V.  Galvin 

561 

V.  Goodnow 

849, 

865, 

1199 

Pilcher  v.  Rawlins 

581 

Pillsbury  v.  Smythe 

889 

Pinchain  v.  Collard 

191 

,  198 

,  214 

Pinckard  v.  Powder 

652 

Pingrey  v.  Watkins 

785 

Pintard  v.  Goodloe 

173 

Pitman  v.  Thornton 

1106 

Pitts  V.  Aldrich 

868, 

1067, 

1291 

V.  Cable             262,  265 

,  275 

,  293 

V.  Parker 

191,  215 

>,  225 

,  235 

V.  Tildeu 

1309 

Pitzer  V.  Burns     96, 

1192,  1194, 

1362, 

1364 

Pixley  V.  Huggins 

462 

Place  V.  Fagg 

435 

Plant  V.  Gunn 

626 

Planters'  Bank  v.  Dc 

dson 

213 

V.  Douglass 

874, 

1887 

Plat  V.  Gilchrist 

1502 

Plato  V.  Roe 

248 

320, 

1039 

Piatt  V.  Griffith 

375 

V.  McClure 

1742, 

1788, 

1814 

V.  Robinson 

1493 

V.  Smith 

1187 

V.  Sprigg 

1401 

V.  Squire 

1055 

Playford  v.  Playford 

1065 

Plimpton  r.  Ins.  Co. 

401 

Plowman  v.  Riddle 

198,216 

V.  Shidler 

1503 

Plumb  V.  Fluitt 

591 

Plume  V.  Bone 

544 

Plumer  v.  Guthrie 

312 

Plummer  c.  Jarman 

113 

V.  Robertson 

601 

Poett  V.  Stearns 

357 

Pogue  V.  Clark 

1368, 

1378 

1467 

Ixxi 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Poignard  v.  Smith  703,  789 

Poindexter  v.  McCannon  258,  279 

Polhenius  v.  Trainer  280 

Pollard,  ex  parte  184 

Pollard  V.  Sommerset  Mut.   Fire 

Ins.  Co.  422 

Polley  V.  Seymour  1931 

Pollock  V.  Mai  son  27 

Pomeroy  v.  Lattinjij  567,  1283 

V.  Winship  1244,  1262 

Pomet  V.  Scranton  558 

Pomroy  v.  Rice  924,  926,  930 

V.  Stevens  600 

Pond  r.  Causdeli  1499,  1597 

V.  Clarke     .  929,  934,  1187 

V.  Eddy  300,  333,  927 

Pool  t\  Hathaway  869 

Pope  V.  Barrage  1 854 

V.  Durant   859,  1175,  1180,  1577, 

1735 

V.  Jacobus  804,  820,  837 

Port  V.  Robbins  924,  930 

Porter  r.  Barclay  1698 

V.  City  of  Dubuque       191,  201, 

207 

I'.  Clements  269 

V.  Green  458 

V.  Hill  972 

V.  Kilgore  1395 

V.  King  1229 

V.  Lafferty  680 

V.  Lord  1444 

W.Millet  977 

V.  Nelson  267,  307 

V.  Perkins  940 

V.  Pillsbury  1228 

V.  Smith  354 

Portland  Bank  v.  Hall  701 

Portwood  V.  Outton  531 

Post  V.  Dart  1493,  1494 

V.  Dorr  669,  1527,  1536 

V.  Leet  1649 

V.  Mackall  1439 

V.  Tradesman's  Bank       387,  950, 

951 

Poston  V.  Eubank  1626 

Potter  V.  Crandall  1392 

V.  Cromwell  429 

V.  Rowland  1351 

V.  Small  1263 

V.  Stevens  817 

Potts  V.  Black  well  1487 

V.  Blanchard  ^  141 

V.  Plaisted  893,  899,  900 

Poutz  V.  Reggio  49  7 

Powell  V.  Conant  87,  616 

V.  Hopkins        1806,  1807,  1869 

Ixxii 


Powell  V.  Hunt  644,  1493 

V.  Monson    &   Brimfield 

Manuf.  Co.  446 

V.  Ross  1420,  1422 

V.  Smith  853,  1187 

V.  Tuttle  1790 

V.  Williams  18,  1229 

Power  V.  Lester  44,  138,  139,  851 

Powers  V.  Dennison  433 

V.  Kneckhoff  1854 

V.Russell  1105 

Poweshiek  Co.  v.  Dennison  1181, 

1577,  1619,  1654 
Powis  V.  Corbel  1083 

Powles  V.  Innes  401 

Pratt  V.  Bank  of  Bennington  817 

V.  Clark  191,  219 

V.  Cowan  '  459 

V.  Frear  1048,  1436 

V.  Huggins         1203,  1204,  1207, 
1215 
I'.  Potter  541 

V.  Ramsdell       1111,  1450,  1602, 
1603 
V.  Skolfield  667,  807,  1052 

V.  Squire  603 

V.  Stiles  1602 

V.  Tinckom  1831 

V.  Topeka  Bank  466 

V.  Vanwyck  219 

Prebble  v.  Conger  734 

Presbyterian  Corporation  v.  Wal- 
lace 129,  1621 
Preschbaker  v.  Feaman   244,  245,  247, 
273,  293,  1039 
Prescott  i;.  Ellingwood  1298 
Preston  V.  Briggs                      439,  1657 
V.  Hodgen  1077 
V.  Hull                                90,  91 
Prewett  v.  Dobbs                         303,  324 
Price  V.  Bray  ton  434 
V.  Copner                       1144,  1166 
V    Cutts  163 
V.  Evans                                    332 
V.  Cover                              299,  384 
V.  Karnes                           293,  335 
V.  Lawton                                  1500 
V.  Masterson                               627 
V.  McDonald                       556,  595 
V.  Perrie                                  7,  1043 
V.  Pollock                       1491,  1494 
V.  State  Bank                          1323 
V.  White                                      573 
Prichard  r.  Wilson                            1810 
Pridgen  v.  Andrews                          1439 
Priest  V.  Rice                                       462 
V.  Wheelock                             936 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Princeton    Loan   &  Trust    Co.   v. 


Munson 

Prin<ilc'  V.  Dunn 

Pritcbard  v.  Brown 
V.  Elton 

Pritcliett  V.  Mitcliell 

Probasco  v.  Johnson 

Proctor  V.  Baker 
V.  Cowper 
I'.  Farnam 
I'.  Thrall 

Prouty  V.  Eaton 
V.  Price 

Pr}ce  V.  Bury 

Pry  01-  V.  A^'ood 

PufTer  i\  Clark 

Puoh  V.  Holt 


1182,  1821,  193G 

532,  584 

255 

7,  1046 

1493 

170 

1390,  143G 

1166 

1652 

972 

910,  1211,  1512 

906,  1512 

181 

787,  842,  1355 

951 

228,  1701 


R. 


Pullan   V.  Cincinnatti   &   Chicago 

R.  Co.  154,  670,  1516,  1532 

Pullen  V.  Heron  Min.  Co.  1425 


Purcell  r.  Mather 
Purdie  v.  Whitney 
Purdy  V.  Bollard 

IK  Huntington 

Piirrington  v.  Pierce 
Purser  v.  Anderson 

Purviance  i\  Holt 
Purvis  V.  Brown 

V.  Carstaphan 

Putnam  v.  Putnam 

V.  Ritchie 

Pye  V.  Danbuz 

Pym  r.  Blackburn 

V.  Bowreman 


136 

1777 

172,  226 

474,   476,    549, 

872 

253 

913,  943,  946, 

948 

324 

1055 

949 

1088,  1099 

1128 

179 

321 

1062 


Q. 

Quarles  v.  Knight 

Quarrell  v.  Beckford 

Quarternious  v.  Kennedy 

Quaw  r.  Lameraux  1624 

Quortier  i'.  HiUe 

Quiinbv^  v.  Cook 

Quin  V.  Brittain         1069,  1095, 

Quinl)y    v.    Manhattan    Cloth 

Paper  Co. 
Quincy  v.  Cheeseman  1516, 

Quinn  r.  Brittain       1123,  1127, 


Quint  V.  Little 
Quivey  v.  Baker 


1152 


1563 

1525 

7,  96 
,  1680 

1338 

652 

1096, 

1108 
& 

429 
1530, 

1532 
1517, 

1522 
,  1265 

1464 


Rackliffe  v.  Seal  1345 

Racouillat  v.  Sansevain  163,  166,  531, 

556 
Raddick  V.  Walsh  1420 

Rader  v.  Ervin  1590 

Raffety  v.  King  1005,  1149,  1156 

Ragland  v.  Justice,  &c.  26 

Raguet  V.  Roll  619,  626,  1355 

Rains  v.  Mann 
Rakestraw  i\  Brewer 

V.  Hamilton 
Ramsay  v.  Warner 
Ramsbottom  v.  Wallis 
Ramsdall  v.  Eaton 
Ramsey  v.  Merriam 
Ramsey's  appeal 
Randall  v.  Bradley 

I'.  Elwell 

V.  Hazelton 

V.  Phillips 
Randolph  i'.  Gwynne 

V.  Middleton 
Rands  v.  Kendall 


Rangely  v.  Spring 
Rankert  v.  Clow 
Rankin  v.  Major 


V.  Mortimere 
Ransom  v.  Hayes 
Ransone  v.  Frayser 
Ranstead  v.  Otis 
Rapelye  v.  Anderson 

V.  Prince 
Rardin  v.  Walpole 
Rasdall  v.  Rasdall 
Rathbone  v.  Clark 

V.  Hooney 
RatlifT  V.  Davis 
Raucli  V.  Oil  Co. 
Raun  V.  Reynolds 
Ravald  v.  Russell 
Rawson  v.  Hall 

V.  Lampman 
Ray  V.  Goodman 
Raymond  v.  Raymond 
Rayne  v.  Baker 
Raynham  v.  Snow 

V.  Wilmarth 
Raynor  v.  Lyons 

V.  Selmes 

V.  AVilson 
Read  v.  Edwards 
Readins:  i'.  Weston 


953,  1459 

714,  1155 

235 

1105 

1102 

1440 

1854,  1855,  1882 

1628 

1144 

452 

1825,  1899 

135,  704 

446 

1182 

46,  1693 

1269 

3 

790,  813,  822,  1369, 

1378,  1700 

251 

1493 

262,  274 

332 

1713 

358,  1134,  1597 

882 

320 

1576,  1621,  1840 

1445, 1589 

1388 

128 

1630,  1681 

1065 


901 
1397 
237 
811,  1248 
581 
1290 
1291 
288,  323 
1075,  1645 
562 
1204 
265,  282,  289 


Real  Estate  Trust  Co.  v.  Keech 


Ixxiii 


64  7, 
1499 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Real  Estate  Trust  Co.  v.  Rader  1495 
Reasoner  v.  Edmundson  28,  493,  535 
Rector  v.  Rotton  1347 

Red    Bank    Mut.   Build.  &   Loan 

Ass'n  V.  Patterson  638,  728 

Reddick  v.  Gressman  39 

Redfield  v.  Hart  1395 

Red  ford  v.  Gibson  198 

Redman  v.  Dejiuty  1190 

V.  Sanders  31 

Redmond  v.  Packenham  1899 

Reece  v.  Roush  332 

Reed  v.  Coleman  118 

V.  Elwell  1116,1240 

V.  Gannon  580,  600 

V.  Gregory  220 

V.  King  96  7 

V.  Latson  1492 

V.  Marble  791,  896,  1406 

z>.  Reed  1129,1139,1140 

V.  Sheplej''  1361 

V.  Welsh  1737 

Reeder  v.  Cary  1700 

Reedy  v.  Burgert  1355 

Reeks  f.  Postlethwaite  1171 

Rees  V.  Ludington  609 

Reese  v.  Burts  225 

Reeve  v.  Hicks  1156 

Reeves  v.  Butcher  623 

V.  Kimball  842 

V.  Scully  834,  842,  1487 

Refeld  v.  Ferrel  191,  193 

Reg  V.  Lee  642 

Reichert  v.  M'Clure  463 

Reid  V.  Bank  of  Tenn.  1120 

V.  Lansdale  1079 

V.  Middleton  1935 

V.  Mullins  1929 

V.  The  Evergreens  1385 

Reigard  v.  McNeil    241,  250,  293,  324 

Reily  v.  Mayer  1631 

V.  Miami  Exporting  Co.  211 

Reitenbaugh  v.  Ludwick  244,  248, 

277,  1114 
Relfe  V.  Relfe  226 

Remington  v.  Campbell  293 

V.  Willard  1606 

Remsen  v.  Hay  711,  1046 

Ren  V.  Bulkeley  12 

Renaud  v.  Conselyea  1390 

Renvoizo  v.  Cooper  1563 

Requa  V.  Rea  ~   1642,1672 

Revalk  v.  Kracmer  1420,  1423 

Reynal,  ex  parte  436 

Reynolds  v.  Canal  &  Banking  Co. 

of  N.  O.    19,  1121,  1124 
i;.  Green  1157,  1195 

Ixxiv 


Reynolds  v.  Harris 

V.  Scott 
Reynoldson  v.  Perkins 
Rhinehart  v.  Stevenson 
Rhines  v.  Baird 
Rhoades  v.  Canfield 

V.  Parker 
Rhodes  v.  Buckland 

V.  Dutcher 

V.  Evans 
Riblet  V.  Davis 


1587 

244 

1401 

1586 

312,  374 

567,  608 

389,  391,  668 

1102,  1797 

1615,  1651 

1404,  1717 

1218 


Ricard  v.  Sanderson      751,  1713,  1714 
Rice  V.  Adams  446 

17.  Bird  977 

);.  Boston  &  Worcester  R.  R. 

Co.  824 

V.  Brown    1733,  1775,  1837,  1846 
V.  Clark  1312 

V.  Cribb        359,  817,  1485,  1591, 
1606 
V.  Dewey  147,  387,  558,  603, 

726,  842,  932 
V.  Goddard  1504 

V.  Rice     200,  252,  268,  272,  300, 

604 

V.  Tower  422 

Rich  V.  Doane    261,  262,  277,  317,  325 

Richards  v.  Bibb  Co.  Loan  Ass.      1331 

V.  Cooper  1438,  1439 

V.  Fisher  226 

V.  Holmes     1176,  1181,  1634, 

1873,  1882 

V.  Laming  207,  212 

V.  Warring  842 

I'.  Worthley  1493 

Richardson  v.  Baker  219 

'v.  Barrick      250,  266,  624 

V.  Bowman  191 

V.  City  of   Cambridge 

138,  824,  886,  913,  946 

V.  Copeland  445 

V.  Hastings  1367 

V.  Jones  1643 

V.  Parrott  1586 

V.  Ridgely  207 

V.  Sibley  124 

V.  Stillinger  219 

V.  Wallis  1121 

V.  Woodbury  298 

V.  Young  1166,  1171 

Richardson's  Succession  193 

Richmond  v.  Aiken  1192,  1204 

Richmond  Iron  Works  v.  Woodruff 

1293 
Richmond  Manu.  Co.  v.  Davis  90 

Rickard  v.  Talbird  943 

Ricketson  v.  Richardson  70 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


llid.li.k  c.  ^Vulsh 

1424, 

1694 

Riddle  v.  Bowaiaii 

387 

Rider  v.  Powell 

97 

Rid^ely  v.  Howard 

538 

Ridgeway  v.  Toram 

219 

Riggs  V.  Pursell 

1646 

V.  Sholes 

1306 

Righter  v.  Forrester 

462 

Rigney  v.  Lovejoy 
V.  Small 

8n 

,  817 
1674 

Riley  v.  IMcCord 

936, 

1345 

V.  Pierce 

117 

Rilling  V.  Thompson 
Ring  V.  Steele 

635, 

1606 
574 

Ripley  v.  Babcock 
V.  Harris 

364 

103 

,  528 

Ripperdon  v.  Cozine 

212 

Ritch  V.  Eichelberger 

1621, 

1624 

Ritchie  v.  Williams 

920 

Ritger  v.  Parker 

1654 

Ritter  v.  Phillips 

73t 

>,  744 

V.  Worth 

537 

Roarty  v.  Mitchell 
Roath  V.  Smith 

1782 

1388 

Robards  v.  Cooper 

1503, 

1506 

Robbing  V.  Abrahams 

113 

V.  Eaton 

104 

V.  Rice  1263,  1292,  1303 

Robenson  u.  Vason  1736 

Roberdeau  v.  Rous  1663 

Robert  v.  Traders'  Ins.  Co.  411 

Roberts  v.  Bozon  1765 

V.  Croft  182 

V.  Dauphin  Deposit  Bank 

436,  446 

V.  Fleming      1128,  1674,  1876 

V.  Francis  227 

V.  Halstead  957,  1355 

V.  Littlefield  1144,  1194 

i;.  McMahan  268,  295,  332 

V   Pierce  1590 

V.  Richards  293 

V.  Roberts  1677 

V.  Sutherlies  47,  715 

V.  Welch  915 

V.  W^i<rgin  104 

V.  ^Yood  1331 

Robertson  v.  Campbell  258,  318 

V.  Hogsheads  1811 

V.  Lockie  1823 

V.  Norris  1801 

V.  Paul  1759,  1792 

V.  Robertson  332 

V.  Stark  71,  350 

Robins  v.  Swain  953,  954 

Robinson  v.  Brennan  66 

r.  Cromelein  378 


Robinson  v.  Cropsey        258,  264,  269, 

279,  309 

V.  Cross  973 

V.  Cullom  1886 

V.  Farrelly  251,  325 

V.  Fife  1144,  1157,  1170 

V.  Harbour  235 

V.  Leavitt         848,  889,  893, 

902,  923 

V.  Loomis  76,  359 

V.  Mauldin  151 

V.  Meigs  1639 

V.  Preswick  428,  1527 

V.  Robinson  241 

V.  Ryan  358,  812,  1075, 

1080,  1134,  1596,  1678, 

1683,  1751,  1902,  1921 

V.  Sampson  96  7 

V.  Stewart  627 

V.  Urquhart        877,  925,  934 

■W.Williams      201,364,368, 

372,  374 

V.  Willoughby  244,  268, 

512,  572 

Roby  V.  Skinner  1112 

Roclie  V.  Farns worth  1843 

Rochester  v.  Whitehouse  1293 

Rockwell  c.  Bradlev  22,667 

V.   Hobby'  186 

V.  Servant  936,  1152,  1161, 

1211,  1661 

Roddam  v.  Morley  1198 

Roddy  V.  Williams  1178 

Roddy's  appeal  874 

Rodes  V.  Bronson  901 

Rodgers  v.  Gibson  460 

V.  Kavanaugh  528 

V.  Jones  1187 

Rodman  v.  Hedden  1187 

Roe  I'.  Nicholson  577 

Roelofson  v.  Atwater  660 

Rogan  V.  Walker  250,  320,  1039, 

1144 

Rogers  v.  Brokaw  444,  447 

V.  De  Forest  889 

V.  Haskings  580 

V.  Holyoke  1425 

V.  Humphreys        774,  776,  7  77 

V.  Jones  579 

V.  Meyers  875,  1061,  1220 

V.  Newton  1529 

V.  Place  1503 

V.  Traders'  Ins.  Co.      876,  924 

V.  Trustees  of  Schools  924 

V.  Ward  109 

Roll  V.  Smalley  1609 

Rolland  v.  Hart  571,  584,  586,  589 

Ixxv 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


Rollins  V.  Columbian  Mut.   Fire 

Ins.  Co.  422 

i;.  Forbes  1461,1720 

Rolt  t'.  Hopkinson  365 

Roney  v.  Bell  1425 

Rood  V.  Win  slow  612,  621,  626 

Roosevelt  v.  Bull's  Head  Bank         900 

V.  Ellitliorp  1390,  1458 

V.  N.  Y.  &  Harlem  R.  R. 

Co.  900,  1450 

Root  V.  Bancroft  170 

V.  Collins  1091,  1092,  1621 

V.  Wheeler  1687,  1751,  1822 

Rootes  V.  Holliday  544 

Rooth  V.  Ryan  1503 

Roper  V.  Day  235 

V.  McCook  212,  219,  235 

Roscarrick  v.  Barton  6,  1401 

Rose  V.  Kimball  790 

V.  Pat^e  1439 

v.  Watson  223 

Rosevelt  v.  Carpenter  1230 

V.  Stack house  719 

Ross  V.  Demoss  1876 

i:  Haines  1625 

V.  Heintzen  212 

V.  Mead  1859 

V.  Mitchell  176,  1207 

V.  Nor  veil  318,  1144 

V.  Terry  824 

V.  Whitson  191 

V.  Wilson  149 

V.  Worthington  532,  595 

Rosseel  v.  Jarvis  1182,  1471,  1586 

Round  V.  Donnel  71 

Rounds  V.  McChesney  560 

Roussel  r.  St.  Nicholas  Ins.  Co.        408 

Routh  V.  Spencer  558 

Rowan  v.  Mercer  1425 

V.  Sharp's  Rifle  Manuf. 

Co.  155,  372,  1137 

Rowe  t;.  Beckett  1731 

V.  Table  Mountain  Water 

Co.  1324,  1720 

V.  Wood  1123,  1125,  1522,  1525 

Rowland  v.  Day  2 1 1 

V.  Leiby  1324,  1720 

RoAvley  v.  Brown  1857 

V.  William  1396 

Rubens  V.  Prindle  76,  741,  768 

Ruby  V.  Portland  1127 

Ruckman  v.  Astor  1118,  1119 

Rucks  V.  Taylor  1439 

Rudgc  V.  Richens  1219 

Ruffier  V.  Womack    265,  316,  325,  328 

Ruffners  v.  Putney  271 

Ruggles  V.  Barton         808,  1282,  1311 

Ixxvi 


Ruggles  V.  Williams 

315 

Ruhling  V.  Hackett 

97,  99 

Runkle  v.  Gaylord 

1909 

Runlet  V.  Otis 

244,  307 

Runyan  v.  Mersereau 

13, 

44,  701, 
813,  889 

Ruslimore  v.  Miller 

1432 

Rushworth's  case 

714 

Russel  V.  Russel 

163,  179 

Russell  v.-  Allen 

736,  774 

V.  Blake 

1127,  1129 

V.  Clark 

1233 

V.  Dudley 

747 

V.  Duflou 

1 

751,  1939 

t'.  East  Anglian  R.  Co.      1535 

V.  Ely  715 

V.  Kinney  1491 

V.  McCormick  193 

V.  Mixer  970,  1587 

V.  Pistor  740,  755,  865,  876,  878 

V.  Plaice  1766 

V.  Richards  1634,  1873 

V.  Southard  266,  275,  279, 

285,  323,  324,  325,  420, 

712,  1046 

V.  Todd  219 

V.  Waite  253,  548,  842 

V.  Watt  205,  214 

v.  Whiteley  1902 

Ruto-ers  v.  Kin^sland  99 

Rutherford  t'.  Williams         1825,  1876, 

1877,  1889 

Ryan  v.  Dox  241,  277,  332 

i\  Shawneetown  381 

Ryerson  v.  Boorman  1618 

Rylands  v.  La  Touche  1098 


Sage  V.  McLaughlin  1556,  1560 

V.  Riggs  359,  1606 

Sahler  v.  Signer       241,  332,  702,  715, 

849 

Salem  v.  Edgerly  743 

Salmon  v.  Bennett  629 

V.  Clagett  684,  1181,  1859 

V.  Dean  784 

V.  Hoffman  191 

Saloway  v.  Strawbridge  1889 

Salzman  v.  His  Creditors      1338,  1701 

Sample  v.  Rowe  99 

Sampley  v.  AVatson  204 

Sanborn  v.  Denis  1271 

V.  Osgood  625 

V.  Robinson  532,  594 

Sanders  v.  Lord  Lisle  1524 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


Sanders  v.  McAffee 

20/ 

,  210 

V.  Kfed 

G87 

v.  Richards 

17G6 

V.  Wilson 

1122 

Sanderson  v.  Edwards 

921, 

1298 

V.  Price 

43 

Sandford  v.  Travers 

1501, 

1502 

Sandfoss  i'.  Jones 

332 

Sandon  v.  Hooper        1123,  1129,  1137 
Sands  Ale  Brewing  Co.,  in  re         400, 

404 

Sands  v.  Church  644,  745,  1494 

i\  PfielFer  455,  165  7 

V.  Wood  1426 

Sanford  v.  Biilkley  1381 

f.  Washburn  485 

V.  AVheeler  367 

San  Francifco  v.  Lawton     1439,  144(f, 

1445,  1579,  1581,  1656 

Sanger  v.  Bancroft  818 

Sangster  i-.  Love     804,  813,  822,  1700, 

1207 
Santacruz  v.  Santacruz  14  75 

Sargeant  v.  Fuller  866 

Sargent  v.  Howe     62,  838,  1699,  1774, 

1789 

t'.  McFarland  1314 

V.  Webster  127,  130 

V.  Wilson  1420,  1423,  1441 

Sauer  w.  Steinbauer         ,       1615,1711 

Saunders  v.  Dehew  57  7 

V.  Frost  300,  414,  1077 

V.  Hawkins  1062 

V.  Leslie  210 

V.  ]\Iilsome  1225 

V.  Stewart  306 

Savage  v.  Dooley  664,  719 

V.  Foster  602 

I'.  Hall  866,  868 

V.  Holyoke  106 

V.  Stone  1715 

Savary  v.  Clements  794,  958 

Savery  v.  Sypher  1668 

Saville  V.  Saville  1642 

Savings  Ass'n  v.  Vandevere  638 

Sawver  v.  l^von  1090 

V.  Prickett  1486 

Saxton  V.  Hitchcock  258,  269 

Sayles  v.  Smith  1847 

Saylors  v.  Saylors  387 

Sayre  v.  Fenno  644 

Scanlan  v.  Wright  63 

Scarfe  v.  Morgan  894 

Schade  v.  Bessinger  305 

Schadt  V.  Heppe  1425 

Schafer  v.  Keilly         86,  611,  788,  844 

Scharwz  v.  Stein  207,  232 


Scheckell  v.  Hopkins  1042 

Scheible  r.  Bacho  617,663 

Schenck  v.  Conover    1601, 1611, 1663, 

1688 
Schermerhorn  v.  Talman  1095 

Schinkel  v.  Hanewinkel  889 

Schlatre  v.  Greaud  751 

Schmidt  v.  Hoyt  462 

V.  Mackey  1462 

V.  Potter  1607 

Sclinebly  v.  Ragan  192,  215 

Schockley  i-.  Shockley  1393 

Scholefield  v.  Heafield  1572 

V.  Templer  '         967 

Schoole  V.  Sail  1216 

Schooley  v.  Romain  76,  1181 

Schoonmaker  v.  Taylor  76,  1182 

Schutt  V.  Large  5  74 

Schwarz  v.  Sears  1921 

Schwinger  i\  Hickok  1716 

Scituate  v.  Hanover  244 

Scoles  V.  Wilsey  555 

Scott  V.  Brest  1132,  1526 

I'.  Clinton  &  Springfield  R. 

R.  Co.  152 

V.  Crosdale  1355 

V.  Featherston  751 

V.  Fields  1225 

V.  Frink  888 

V.  Fritz  772 

r.  Griggs  224 

V.  Henry         245.  246,  279,  287, 

1055,  1061,  1064 

V.  Mann  213 

r.McFarland         242,244,1244, 

1262 

V.  McMurran  461 

V.  Orbison  197 

V.  Saffold  651 

V.  Turner  817 

Scripture  v.  Johnson  1083 

Scroggins  v.  Hoadley  226 

Scudder  v.  Union  Nat.  Bank  656 

Seagram  v.  Knight  1156 

Sea  Ins.  Co.  v,  Stebbins       1516,  1521, 

1527,  1528,  1531,  1532,  1536 

Seals  V.  Cashin  26 

Seaman  r.  Fleming  365 

V.  Hicks  1645,  1649 

Searle  v.  Chapman  1286 

Sears  i".  Dixon  258 

I'.  Smith  194,  207 

Seaton  v.  Twyford  1177,  1859 

Seaver  v.  Durant  1116 

r.  Spink  467 

Seavey  v.  Browning  89 

Second  Ward  Bank  v.  Upmann       244 

Ixxvii 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Security  Fire  Ins.   Co.  v. 

Martin 

14G7 

Sedam  v.  Williams 

1463 

Sedgwick  v.  Cleveland 

123 

V.  Fish 

1615 

V.  Latlin 

67 

,  661 

Seeley  v.  Manning 
Seevers  v.  Delashmutt 

672 
458 

Segrest  v.  Segrest 

1107 

Seitz  V.  U.  P.  11.  Co. 

227 

Selby  V.  Cooling 
V.  Stanley 
Selden's  appeal 
Self  V.  Madox 

1766 

191 

1355 

1411 

Seligmau  v.  Laublieimer 

954, 

1333 

Sellers  v.  Bottsford 

1494 

V.  Stalcup 

310 

,  328 

Semple  v.  Lee     1401, 1406,  1425,  1514 
Servis  v.  Beatty  225 

Sessions  v.  Peay  1612 

V.  Richmond  1111 

Seton  V.  Slade  1039 

Severence  v.  Griffith       677,  807,  1457 
Severson  v.  Moore  1511 

Sevier  r.  Greenway  284 

Sewall  V.  Brainerd  653 

Sexton  V.  Pickett  728 

Seymour  v.  Bailey  1800 

V.  Canandaigua  and  Ni- 
agara Falls  R.  Co.     124, 
152,  156 
V.  Darrow  343,  924 

V.  Davis  1063 

Shaeffer  u.  Chambers  1123,1126, 

1139 
Shafer  v.  Bear  River,  &c.  Mining 

Co.  677 

Shall  V.  Biscoe         173,  191,  204,  212, 

235 
Shamokin  Valley  R.  Co.  v.  Liver- 
more  156 
Shannon  v.  Brad  street  12 
V.  Marselis           1500,    1502, 
1621,  1624,  1631 
V.  Speers                            1108 
Shapley  u.  Rangeley                          1254 
Sharkey  v.  Sharkey                             244 
Sharp  V.  Cutler                                    1489 
V.  Daugney                             1904 
V.  Proctor                                    112 
Sharpe  v.  Arnott                              1190 
V.  Barker                         77,  1606 
V.  Earl  of  Scarborough       1436 
V.  Foy                               589,  602 
Sharpnoll  v.  Blake         890,  897,  1088 
Shaver  v.  liear  River,  &c.  Co.        1222 
Shaver  v.  Woodward                 293,  548 

Ixxviii 


Shaw  V.  Bunny  1884 

V.  Burton  678 

V.  Erskine  241,  244 

V.  Gray  1339 

V.  Hoadley  702,  1401,  1407, 

1687,  1931 

V.  Jeffery  264 

V.  Lenke  433 

V.  Loud  63,  385 

V.  McNish  1428 

V.  Norfolk  County  R.  Co.      124, 

1244,  1340,  1443 

Shay  V.  Norton  262,  293 

Sheaf  V.  Gerry  70,  71,  1194 

Shearer  v.  Loftin  1780 

t'.  Mills  936 

V.  Shearer  123 

Shed  V.  Garfield  1454 

Sheddy  v.  Geran  945,  961,  1298 

Sheidle  v.  W^eishlee  114 

Shelby  v.  Perrin  207 

Sheldon  v.  Edwards  431,  848,  870 

I'.  Patterson  1421,  1545 

V.  Wright  1612 

Shelton  V.  Atkins  1288 

V.  Hampton  711 

Shepard  u.  Philbrick  697,  1658 

V.  Pratt  703 

.    V.  Shepard      367,  1087,  1472 

Sheperd  v.  Adams  1621 

Shephard  v.  Elliot  1139,  1140 

Shepherd  v.  Burkhalter  530 

V.  Orleans  Cotton  Press 

Co.  497 

V.  Union   Mut.  Fire  Ins. 

Co.  422 

Sheppard  v.  Gwinett  1439 

V.  Thomas  235 

Sheratz  v.  Nicodemus  197 

Sheridan  v.  Welch  703,  789 

Sherman  v.  Merrill  1938 

V.  Sherman  889 

V.  Willett      698,  1658,  1751, 

1905 

Sherwood  v.  Dunbar  984 

V.  Hooker  1107,   1108 

V.  Reade     1613,  1751,  1829 

V.  Saxton  1771,  1903 

V.  Wilson  977,  1060 

Shields  v.  Lozear    9,  43,  889,  892,  973 

V.  Miller  1336 

Shine  v.  Hill  1915 

Shinn  v.  Fredericks  235 

V.  Taylor  227 

Shirkey  v.  Hanna  1368 

Shirley  v.  Shirley  223 

V.  Sugar  "Refinery         193,  202 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Shirras  v.  Caig  141,  343,  365,  3G7, 

369,  377,  379 

Shitz  V.  Dieffenbach  185 

Shiveley  v.  Jones        133  7,  1414,  1645, 

1651 
Shores  V.  Scott  River  Co.  1589 

Short  V.  Battle  113,  117,  200,  458 

i;.  Nooner  1474 

Shotwell  r.  Smith        1516,  1521,  1534 
Shuart  V.  Taylor  439 

Shubert  v.  Stanley  252 

Shiitelt  V.  Shufelt  644,  745,  1223,  1511 
Shuler  V.  Hardin  736 

Shurtleff  c.  Francis  790 

Shute  I'.  Grimes  702 

Shuttleworth  v.  Lowther  1602 

Sibley  v.  Baker  1629 

V.  Leffintrwell  600 


V.  Rider 
Sichel  I'.  Carrillo 
Sickmon  v.  Wood 
Sidle  V.  Maxwell 
Siegel  V.  Drumm 
Sifiken  v.  Davis 
Sile  V.  Ketchum 
Sillers  v.  Lester 
Silloway  r.  Brown 
Silsbe  f.  Lucas 
Silsbee  v.  Smith 


936 

1203,  1214,  1606 

99 

467 

635 

1397 

1383 

151,  152 

35,  80,  667,  1121 

293 

.      1095 


Silver  y.  Bishop  of  Norwich  1524 

Silver  Lake  Bank  v.  North    358,  1080, 
1597,  1683 
Simar  v.  Canaday  1645 

Simers  v.  Saltus  1502 

Simerson  v.  Branch  Bank  at  De- 


catur 

1653 

Simonson  v.  Blake       14 

75, 

1477,  1578 

Simonton  v.  Gray 

848 

Simpson  v.  Amnions 

667 

V.  Mundee 

191 

V.  Robert 

610 

Sims  V.  Cross 

1467 

V.  Hammond 

575 

V.  Hiiudly 

1744 

Simson  v.  Ingham 

906,  908 

V.  Satterlee 

1375 

Sinclair  v.  Armitage 

136,  173 

Singleton  v.  Scott 

1859 

Sire  V.  Wightman 

1179,  1186 

Sisson  V.  Tate 

1248,  1261 

Siter  I'.  McClanachan 

569 

Sitz  V.  Deihl 

227 

Sixth    Ward    Building 

Ass'n    V. 

Willson 

499, 544,  556 

Skaggs  V.  Nelson 

212,  235 

Skeel  V.  Spraker     848, 

853 

,  869,  1092, 
1621 

Skelton?;.  Ward  1334,  1719 

Skillman  v.  Teeple  970 

Skinner  v.  Beatty  1663 

V.  Brewer  1244,  1255 

V.  Buck  20,  1406 

V.  Cox  69 

V.  Miller  258,  297,  1060 

V.  Purnell  208 

V.  Smith  1145 

Skipper  v.  Stokes  136 

Skipwith  V.  Cunningham  88 

Slade  y.  Ri2g  17  73 

Slate  V.  Lake  924 

Slater  V.  Maxwell  1858 

Slautrhter  v.  Foust  1414 

Slayton  v.  Mclntyre     889,  1298,  1310, 

1313 

Slee  V.  Manhattan  Co.      326,  785,  827, 

963,  1059,  1111,  1135,  1144,  1158, 

1602,  1751,  1767,  1787,  1882,  1898 

Slicer  v.  Bank  of  Pittsburg  1144 

Sloan  V.  Coolbaugh  180G,  1808 

V.  Holcomb  467,   1492 

V.  Rice  924,  926 

Slocum  V.  Catlin  848,  870,  924 

Slowey  V.  McMurray        265,  269,  304 

Smack  v.  Duncan  1708 

Smalley   v.    Hickok     1053,1274,1569 

?;.  Martin  157  7 

Smallwood  v.  Lewin  572 

Smart  v.  Bement  835,  1611 

V.  Hunt  1122,  1168 

V.  McKay  1181 

Smith  V.  Am.  Life  Ins.  Co  1668 

t;.  Anders  1077,1087,  1088, 

1322 

V.  Austin  1055 

V.  Bailey  1108 

V.  Bartholomew  1488 

V.  Brackett  605 

V.  Branch  Bank  of  Mobile     481 

V.  Cannell  68 

V.  Chajiman  1396,  1558 

V.  Columbia  Ins.  Co.       399,  419 

V.  Cremer        293,  323,  334,  335 

V.  Doe  1769 

V.  Doyle  266,  332 

V.  Dyer  80,  700,  1248,  1288 

V.  Goodwin  687 

V.  Green  1001,  1002 

V.  Hoyt  1586 

V.  Johns  71,  702,  719,  1244 

V.  Jordan  463,  582 

V.  Kelley      787,  889,  1072,  1273 

V.  Kerr  121 

V.  Lamb  950 

V.  Larrabee  1265 

Ixxix 


TABLE    OF    CASES. 


Smith  r.  Lewis 

680,  714 

V.  Manning 

1099 

V.  Mason 

1235 

V.  Meyers 

1636 

V.  Mobile  Bank 

598 

Reference  is  to  Sections. 

Somes  V.  Skinner 


V.  Monmouth   Mut.   F.  Ins. 

Co.  422,  423 

V.  Moore  226,  687,  692,  694,817 
V.  Mut.  Fire  Ins.  Co.  253 

V.  Nettles  572 

V.  Newton  612,  1484,  1508 

V.  Osborn  113,  621 

I'.  Otley  973 

V.  Packard  1 264 

V.  Parks  294 

V.  People's  Bank  72,  353 

V.  Pierce  1334 

V.  Prince  934 

V.  Provin  138,  1064,  1904 

U.Robinson  173,1105,1572 

V.  Rowland  191,  225,  238 

V.  Sackett  268,  293 

V.  Shepard  7  77 

V.  Shuler  667,  1215,  1355 

V.  Sinclair  1048 

V.  Smith  191,  212,  215,  513, 

546,  579,  580,  808,  897,  953, 
969,  1459,  1685,  1687,  1931 
V.  Stanley  924 

V.  Starr  830 

V.  Stewart  1225 

V.  Sweetser  665 

V.  Taylor  668 

w.  Townsend  114,115,942 

V.  Trenton  Delaware   Falls 

Co.  704 

V.  Vertrees  1737 

•      V.  Vincent  664,  889 

V.  Webb  1389 

V.  Wilson  112 

Smith,  in  re  1927 

Sinithhurst  v.  Edmunds  149 

Snedeker  i'.  Warring  433,  447 

Snow  V.  Stevens  664,  666 

Snyder  v.  Griswold  261,  293 

V.  Robinson  907 

V.  Snyder  848 

V.  Stafford  1351,  1611 

Socicte  D'Epargnes  v.  McHenry    1236 

Soggins  V.  Heard  303 

Solms  V.  McCollough  462,  572 

Solt  u.  Wingart  1687 

Somersett,  &c.  Savings    Assoc,  v. 

Camman  1824 

Somersworth  v.  Roberts  250 

Somersworth     Savings     Bank    v. 
Roberts  71,  344 

Ixxx 


561,  679,  1280, 

1307,  1647 

Soper  V.  Guernsey  388,  395,  668 

Souder  v.  Morrov/  557 

Souders  v.  Van  Sickle  7  77 

Soule  V.  Albee  343,  1404 

V.  Ludlow  1669,  1906,  1911 

V.  Union  Bank  416 

Southampton  Boat,  Co.  v.  Muntz    1807 

Southard  v.  Wilson  1263 

South  Berwick  v.  Huntress  90 

Southerin  v.  Mendum        42,  813,  817, 

889 

South  Sea  Co.  v.  Duncomb  70 

Southworth  v.  Scofield  848 

Soutter  V.  Miller  25,  1769 

Sowell  V.  Barrett  1060 

Spader  v.  Lawler  364,  368,  3  72 

Sparhawk  v.  Bagg  35,  664 

V.  Wilis      1072,  1126,  1276, 

1296 

Sparks  v.  Hess  191,  225,  238 

V.  Pico  1204 

V.  State  Bank       446,  567,  572, 

608 

Spaulding  v.  Crane  869 

V.  Hallenbeck  752 

V.  Scanland  543 

Spear  v.  Hadden  1456,  1497 

17.  Ward  114 

Spears  v.  Hartly  1204 

Speer  t'.  Evans  515,  553 

V.  Haddock  1891 

V.  Whitfield  364,  954 

Spence  v.  Steadman  264,  292 

Spencer  v.  Annon  1855 

V.  Ayrault    627,  6.34,  848,  857 

V.  Fredendall  320,  947 

V.  Harford  951,  1567 

V.  Pierce  74 

V.  Waterman  707 

Spicer  v.  Hunter  241 

Splahn  V.  Gillespie       1334,  1647,  1652 

Spofford  V.  Weston  580 

Sporle  V.  Whayman  181 

Sprague  v.  Graham  828,  1112 

Sprigg  I'.  Bank  of  Mount  Pleasant  285 

Springy.  Haines  1249,  1254 

Springer  v.  Vanderpool  1233 

Springfield  F.   &  M.   Ins.    Co.   v. 

Allen  406,412,413 

Spurgeon  v.  Collier  1039,  1041 

Spurgin  v.  Traub  113 

Spurlock  V.  Sullivan  458 

Spurr  V.  Andrew  735 

Squier  u.  Norris  1636 

Staats  V.  Bigelow  1775 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Stackpole  v.  Arnold  300 

V.  Robbins      812,  930,  953, 

1679,1681,  1902,  1921 

Stafford  v.  Ballou  603 

V.  Van  Rensselaer     191,  207, 

566,  608 

Stahl  V.  Charles  1639 

Stainback  t'.  Geddy  1069 

Staines  r.  Riidlin  1572 

Stalker  v.  McDonald  458 

Stall  V.  City  of  Cincinnati  311 

Stalworth  v.  Blum  79,  901 

Stampers  v.  Johnson  316 

Stanard  v.  Eldridge      '  44 

Stanclift  v.  Norton  76,  77 

Standish  v.  Dow  1439 

St.  Andrew's  Church  v.  Tompkins  565 

Stanhope  v.  Earl  Verney  575 

V.  Manners  1176^  1557 

Stanley  v.  Beatty  822,  1378,  1699 

V.  Kempton  1298 

V.  Valentine  966 

Stanly  v.  Stocks  1620,  1626 

Stansell  v.  Roberts  212,  465,  513, 

573 
Stansfield  v.  Hobson  1163,  1164, 

1167,  1171, 1368 
Stanton  v.  Ala.  &  Chattanooga  R. 

Co.  1535 

V.  Kline  1751 

Stantons  v.  Thompson      848,  872,  873 
Staples  V.  Fenton  600 

Stapleton  v.  Conway  660 

Stapvlton  V.  Scott  1648 

Stark  V.Brown  716,  1396,  1406,  1414, 

1678 

V.  Coffin  901 

V.  Mercer  1711 

Starkweather  v.  Hawes  1321 

Starling  v.  Blair  65 

Starr  v.  Ellis  848 

State  V.  Bailey  1322 

I'.  Griffith  1771 

V.  Lake  936 

V.   Northern,    &c.    Railway 

Co.  154,  452 

V.  Ragland  45 

State  Bank  i'.  Abbott  1406 

f.  Campbell  608 

V.  Tweedy  822,  1077,  1699, 

1701 

V.  Wilson  1333,  1443 

State  Bank  of  Ohio  v.  Hinton         1693 

State  of  Wisconsin  v.  Titus  1576,  1621 

Stearns  v.  Bennett  366 

V.  Grodfrey  927 

V.  Welsh  1634,  1874 

VOL.    I.  / 


Stears  v.  Hollenbeck 

680 

Stebbins  v.  Hall 

748,  749 

V.  Howell 

968 

V.  Miller 

747 

Steel  V.  Black  275,  310,  328 

V.  Bradfield  76 

V.  Steel  35,  69,  242,  250 

Steele  v.  Boone  -  559 

Stein  V.  Indianapolis,    &c.   Asso. 

1494 
Steinruck's  appeal  332 

Stell  V.  Paschal  432 

Stelle  V.  Andrews  634,  1627 

Stellers  v.  Stalcup  275 

Stephanson  v.  Maxwell  240 

Stephen  v.  Beall  1880 

Stephens  v.  Bicknell  1545 

V.  Casbacker  764 

V.  111.  Mut.  Fire  Ins.  Co. 

397,  1661 

V.  Muir  644 

Stephens'  appeal  191 

Stephenson  v.  Haines  465 

V.  Thompson         241,  268, 

323,  332 

Stepp  V.  Phelps  297 

Stermberg  v.  Dominick  1898 

Stetson  u.  Everett  1270,   1272 

V.  Gulliver  500 

V.  O'Sullivan  1889 

Stevens  i'.  Brown  667 

V.  Buffalo,  Corning  &  N. 

Y.  R.  Co.  155,  452 

V.  Campbell    1401,  1404,  1422 

V.  Chadwick  225,  235 

V.  Church  737 

V.  Cooper  309,  722,  982,  1627, 

1631,  1090 

V.  Dufour  1228 

V.  Miner  1072,  1108,  1566 

V.  Taft  700 

V.  Veraine  1602,  1603 

V.  Watson  152 

Stevenson  v.  Adams  979 

V.  Black  751,  822 

Stewart  v.  Barrow  31 

V.  Caldwell  219 

V.  Clark  1277,  1309,  1310 

V.  Crosby  889 

V.  Davis  718,  1273,  1307 

V.  Huff  528 

V.  Hutchins  166,  188 

V.  Nettleton  1577 

Stewart  v.  Wood  223 

St.  Helen  Mill  Co.,  in  re  128,  531 

Stiger  f.  Mahone  1432.1711 

Stillman  v.  Looney  617,  663 

Ixxxi 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Stillman  v.  Stillraan 

879,  921 

Still  well  V.  Adams 

1181 

V.  Kellogg 

616, 

1710 

V.  McNeely 

1383 

Stinson  v.  Ross 

664 

Stitch  V.  Dickinson 

1441 

St.  John  V.  Bumpstead 

1406 

V.  Camp 

344 

V.  Grabham 

1387 

V.  Mayor 

1639 

V.  Spalding 

472 

V.  Wareham 

262 

St.  Mark's  F.  Ins.  Co.  v.  Harris      467 

Stocking  V.  Faircliild  244 

Stockton  V.  Craddick  710 

V.  Dundee  Manuf.  Co.     1586 

Stoddard  v.  Forbes  1047,  1333 

V.  Hart  357,  846,  889 

V.  Rotton  549,  867 

V.  Whiting  309,  331 

Stoever  I'.  Stoever  244,1939 

Stoffel  V.  Schroeder  1915 

Stokes  V.  Clindon  1435 

Stone  V.  EUis  765,  1070 

V.  Godfrey  1067 

V.  Lane  357,  1079 

V.  Lannon  990 

V.  Locke  1103,  1141,  1377 

V.  Patterson  775 

V.  Scripture  960 

V.  Seymour  1139 

Stonehewer  v.  Thompson      1069,  1436 

Stoney  v.  Shultz  1615,  1621,  1678 

Storer  v.  Bounds  176 

V.  Snow  629 

Storms  V.  Storms  345 

Story  V.  Johnson  105 

Stoughton  V.  Pasco  70,  346,  637 

Stout  V.  Keyes  1661 

Stove  V.  Rounds  1041 

Stover  V.  Eycleshimer  150 

V.  Johnnycake  1606 

V.  Little  1243,  1261 

V.  Wood  966 

Stow  V.  Tifft  464 

Stowell  V.  Pike  687,  689 

St.   Paul   V.   Viscount  Dudley  & 

Ward  848 

Strachn  v.  Foss  925 

Straight  v.  Harris  562,  723,  1439 
Strang  v.  Allen  1048,  1119,  1123,  1395 

V.  Beach  99 

Stratford  v.  Twynam  1882 

Stratton  v.  Gold  212,  228,  230 

V.  Sabin  271 

Straw  V.  Greene  1292 

Streator  v.  Jones  275,  310,  328 

Ixxxii 


Street  v.  Beal  1072,  1425,  1680 

Stribling  v.  Bank  of  Kentucky         117 

Strickland  i'.  Summerville  232 

Stringham  v.  Brown  1808 

Strobe  v.  Downer  1439 

Strong  V.  Blanchard  1105,  1129, 

1134,  1138,  1271 

V.  Catton  1634,  1670 

V.  Converse  666,  748,  864 

V.  Manufacturers'  Ins.  Co.  397, 

398 

V.  Stewart  309 

V.  Strong  950 

V.  Van  Deusen  466 

Strother  v.  Law  1789,  1792,  1871 

Stroud  V,  Lockhart  583 

Struble  t).  Neighbert  1462 

Stryker  v.  Storm  1675,  1676 

Stuart  V.  Phelps  622 

V.  AVorrell  1108 

Stucker  v.  Stucker  1368 

Sturch  V.  Young  1519 

Sturdevant  v.  Mather  680 

Sturges  V.  Crowninshield  1204 

Sturtevant  v.  Jaques  959 

V.  Sturtevant  309 

Stuyvesant  v.  Hall  343,  562,  958, 

982,  1092,  1621 

V.  Hone        562,  1624,  1631 

Sucklynge  v.  Coney  1088 

Suffern  i\  Johnson  1351,  1663 

Suffolk  F.  Ins.  Co.  v.  Boyden         409, 

421 
Suhr  V.  Ellsworth  1512 

Suiter  v.  Turner  1413 

Summers  v.  Bromley  1439,  1445 

V.  Roos  374 

Sumner  v.  Barnard  68,  735 

V.  Coleman  1401,  1406 

V.  Palmer  1334 

V.  Waugh  838,  1621 

Sumrall  v.  Chaffin  1857 

Sumwalt  V.  Tucker  34 

Sunderland  v.  Sunderland  295 

Sussex  Co.  Mut.  Ins.  Co.  v.  Wood- 
ruff 397,  420 
Sutherland  v.  Lake  Superior  Ship 

Canal  R.  &.  L  Co.    1535 

V.  Rose      989,  1098,  1099, 

1107 

Sutphen  v.  Cushman  267,  293 

Sutton  V.  Mason  39 

V.  Rawlings  1924 

V.  Sutton  1331,  1562 

Suydam  v.  Bartle        1223,  1351,  1511 

Swaby  v.  Dickon  1535 

Swain  v.  Cato  193 


TABLE   OF   CASES. 


Reference  Is  to  Sections. 


Swain  v.  Seamens 

974 

Swaine  v.  Ferine 

666 

Swan  I'.  Patterson 

877 

V.  Stedman 

121 

V.  Stephens 

665 

V.  Wis  wall 

1291 

r.  Yaple 

804 

808 

820,  924 

Swart  V.  Service 

309 

Swarthout  v.  Curtis 

957,  1467 

Swarfs  V.  Stees 

529 

Swartz  V.  Leist 

822 

Sweet  i;.  Mitchell 

320, 

323,  1046 

V.  Parker 

250,  308 

V.  Sherman 

1226 

V.  Southcote 

582 

V.  Van  Wick 

827 

Sweetser  v.  Lowell 

703 

Sweetzer  v.  Jones 

433 

442 

,  446,  736 

Sweetzer's  appeal      250,  266,  268,  332 

Sweezy  v.  Chandler  1661 

V.  Thayer  1931 

Swetland  v.  Swetland  279,  301 


Swett  V.  Horn 
Swift  V.  Conboy 
V.  Edson 


V.  Kramer 

V.  Mendell 

V.  Stebbins 

Swink  I'.  Thompson 

Syer  v.  Biindy 

Syracuse,  &c.  Bank  v.  Tallman      771, 

1516,  1521 


889,  893 

728,  1628 

1396,  1401,  1404. 

1425,  1567 

927 

1258,  1260,  1261 

1383,  1398 

1334 

581 


Taaffe,  in  re 

1186 

Taber  v.  Cincinnati,  &c. 

R.  R.  Co. 

1181 

V.  Hamlin 

924 

Taft-t;.  Boyd 

926 

V.  Stephenson 

1198 

V.  Stetson 

438, 

1121 

V.  Stevens 

70C 

,  809 

Taggart  v.  San  Antonio  Rid^e 

Ditch  &  Mining  Co. 

1324, 

1591 

Taintor  v.  Keys 

293 

,  335 

Talbot  V.  Braddil 

1040, 

1153 

Tallmadge  v.  Wallis 

1502, 

1504 

Tallman  v.  Eaton 

1678 

V.  Ely         57, 

716,  1395, 

1654 

r.  Truesdell 

1606 

Talmage  v.  Wilgers 

562 

Tanner  v.  Hicks 

17J 

,  235 

Tantum  v.  Green 

828 

Tappan  v.  Evans 

1511 

Tappley  v.  Sheather 

264 

Tarbell  v.  Parker 

919 

Tasker  v.  Small 

1095 

Tassell  v.  Smith 

1083 

Tatum  V.  Holliday 

1745,  1859 

Taylor  v.  Alloway 

205 

V.  Baldwin 

201,  309 

V.  Bassett 

1090 

V.  Chowning 

1767,  1865 

V.  Cole 

913,  986 

v.  Cornelius 

281,  375,  383 

V.  Dickinson 

1790 

V.  Eckford 

227 

V.  Emerson 

281 

V.  Ford 

198 

V.  Fowler 

1693 

V.  Gilpin 

1641 

V.  Hotchkiss 

551 

V.  Hunter 

198 

V.  Kearn 

16.54 

V.  Le  Bar 

375 

V.  Luther 

285,  313 

V.  Maris 

562 

723,  1624, 
1631 

V.  Page          616,  834,  835,  843, 

1487 

V.  Pearce 

1338 

V.  Porter 

664, 

1063,  1292 

V.  Short 

982,  1631 

V.  Stearns 

1770 

V.  Stibbert 

593,  600,  601 

V.  Thomas 

558 

V.  Townsend 

673,  675 

V.  Weld      242 

,244, 

300,  1244, 
1257 

Taylor's  Heirs  v.  Elliott 

1859 

Teaff  V.  Ross 

925 

Tebb  V.  Hodge 

437 

Tedford  V.  Wilson 

- 

479 

Teed  v.  Carruthers 

935 

Teetshorn  v.  Hull 

1036 

Tefft  V.  Munson 

561,  679,  682 

Ten  Eyck  v.  Casad 

1118, 

1395,  1425 

V.  Craig 

711,  712,  714, 

1636,  1884 

V.  Holmes 

385 

Tenison  v.  Sweeney 

862 

Ter-Hoven  v.  Kerns 

372 

Terhune  v.  Taylor 

647 

Terrell  v.  Andrew  County 

542,  550 

Terrio  v.  Guidry 

889 

Terry  v.  Eureka  Colle 

ge 

1179 

V.  Tuttle 

624 

V.  Woods 

924 

Teulon  v.  Curtis 

1153 

Texira  v.  Evans 

90 

Thacher  i'.  Churchill 

110 

Tharpe  v.  Dunlap 

204,  212,  235 

V.  Feltz 

907,  1114 

Ixxxiii 


TABLE    OF    CASES. 


Reference  is  to  Sections. 


Thayer  v.  Campbell       356,  804,  1345, 

1369 

V.  Cramer  50,  1202 

V.  Mann    110,  1204,  1215,  1296 

V.  Richards  391,  1121 

V.  Smith  1244 

V.  Stark  539 

V.  Torrey  749 

Theurer  v.  Mautre  435 

Tholem  v.  Duffy  634,  635,  1606 

Thomas  v.  Brown  1223 

V.  Davies  1531 

V.  Davis  375 

V.  De  Baum  1665 

V.  Dunning  1386 

V.  Evans  1088 

V.  Kelsey  462,  1692 

V.  Mahone  1800 

/•.  Marshfield  63 

V.  Mitchell  1494 

V.  Olney  380 

V.  Vanlieu  461,  582 

V.  Vonkapff  400,  403 

V.  Wyatt  212 

Thomas's  appeal  357,  943 

Thomasson  v.  Townsend         635,  1606 

Thomaston  Bank  v.  Stimpson  276,  298 

Thompson  v.  Banks  275,  299,  328 

V.  Bertram       741,  748,  752 

V.  Bowyer  1162 

V.  Boyd  870 

V.  Campbell  1060 

V.  Chandler  869,  1082, 

1395 

V.  Davenport  318 

V.  Davis  1334 

V.  Dawson  211 

V.  Ellsworth  1498 

V.  Field  1699,  1703 

V.  Heffner  230 

V.  Kenyon  808,  1109,  1257, 

1259,  1266 

V.  Lee  1046 

V.  Lyman  565 

V.  Mack  550 

V.  McGill  201 

V,  Morgan  532 

1-.  Mount  1670,  1676 

V.  Smith  240 

V.  Thompson  751 

V.  Van  Vechten  644 

V.  Vinton  1262 

Thomson  v.  Wilcox  557 

Thornborough  v.  Baker  275 

Tliornhnrg  v.  Jones  1836 

Thorndike  o.  Norris  807 

Thorne  v.  Thorne  1061 

Ixxxiv 


Thorn ey croft  v.  Crockitt        1102,  1140 

Thornhill  v.  Evans  650 

Thornton  v.  Boy  den  1874 

V.  Win  924,  974,  1876, 

1877 

V.  Knox  191,  198,  205 

V.  Neal  220 

V.  Pigg  936,  1218,  1229, 

1420,  1422,  1424 

Thorp  V.  Keokuk  Coal  Co.      714,  755, 

758,  759 
V.  Merrill  543,  1743 

Thorpe  v.  Holdswortb  604 

V.  Ricks  1099 

Thorworth  v.  Armstrong  1850 

Thrall  v.  Spencer  387 

Thredgill  w.  Pintard  173 

Threlkelds  v.  Campbell  1647 

Throckmorton  v.  Price  542,  553 

Thurlow  V.  Mackeson  1871 

Thurman  v.  Cameron  537,  538 

Thurston  v.  Prentiss  1188,  1886 

Tibbetts  v.  Moore  431,  436 

Tibbs  V.  Morris  266,  340,  1147 

Tibeau  v.  Tibeau  304,  324 

Tice  V.  Annin        558,  876,  1229,  1380 
Tichenor  v.  Dodd  349,  738 

Tichout  V.  Harmon  877 

Tickner  v.  Wiswall  627 

Tiernan  v.  Beam  212,  220 

V.  Hinman  1078 

V.  Thurman         191,  204,  206, 
207 
Tift  V.  Horton  431 

Tifft  V.  Walker  307 

Tilford  V.  James  385,  1187 

Tillitson  v.  Boyd  748 

Tillou  V.  Kingston  Mut.  Ins.  Co. 

397 
Tillson  V.  Moulton  248,  250,  27  7, 

282,  293 
Timms  v.  Shannon  11 

Tinkom  v.  Purdy  1634,  1873 

Titley  ?;.  Wolstenholme  1787 

Tittemore  r.  Vt.  Mut.  Fire  Ins.  Co. 

423,  426 
Titus  V.  Ginheimer  452 

V.  Neilson  666,  1693 

Tobey  v.  McAllister  208 

Toby  V.  Reed  664,  697 

Todd  V.  Camjjbell  268,   312,   326, 

335 
V.  Lee  112 

Todlock  V.  Eccles  1420 

Toler  V.  Pender  326 

Toll  V.  Hiller  905,  1665,  1669 

Toller  V.  Cartaret  1444 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Tome  V  Loan  Co.  1439 

Tomlinson  v.  Insurance  Co.  253 

V.  Monmouth    Mut. 

Fire  Ins.  Co.  423 

Tompkins  ?'.  Seely  1087 

V.  Tompkins  1190,  1513 

V.  Wiltberger        1590,  1620 

Tooke  V.  Newman       1808,  1816,  1838, 

1852 
Toomes  v.  Conset  1042 

Tootle  V.  White  1347 

TopUs  U.Baker  1194,1215 

Tormey  v.  Gerhart  1709 

Torrans  v.  Hicks  1587,  1638 

Torrey  v.  Bank  of  Orleans      743,  747, 

1625 

r.  Cook       70G,  936,  1215,  1897 

Totten  i'.  Stuyvesant  1411,  1579 

Touhnin  v.  Steere  1887 

Tousley  v.  Touslev  352,  354,  463,  529, 

542,  552 
Tower  v.  White  1457 

Town  of  Clinton  v.  Town  oE  West- 
brook  22 
Towne  i;.  Fitchburg  Mut.  F.  Ins. 

Co.  399 

Towner  v.  Wells  569 

Townsend  v.  Corning  652 

V.  Empire  Stone  Dress- 
ing Co.       357,  374,  381 
V.  Jemison  1204 

U.Riley  655,657,660 

V.  Ward  751 

Townsend,  re  1022 

Townshend  v.  Stangi'oom  321 

u.  Wilson  1787,1790 

Trabue  v.  Ingles  1663 

Tracey  v.  Lawrence  1823 

Tracy  v.  Jenks  543,  623 

Trappes  v.  Harter  430 

Trash  v.  White  1194 

Travis  v.  Milne  579 

Trayser  v.  Trustees  of  Ind.   As- 
biirv  University       1174,  1190,  1513, 

1579 
Treat  v.  Pierce        249,  702,  708,  1307 
V.  Strickland  241 

Trecothick  v.  Austin  960,  1389 

Trent  v.  Hunt  771,  774,  TK 

Trenton  Banking  Co.  v.  Woodruff 

966, 967,  1522,  1523,  1525 
Tribble  v.  Oldham  197 

Triebert  v.  Burgess  1471 

Trimm  v.  Marsh  13,  44,  712,  1229 

Tripe  V.  Marcy  42,  757 

Triplett  v.  Sayre  1454,  1462 

Tripp  V.  Cook  1670,1671,  1673 


Tripp  V.  Ide  1894 

V.  Vincent  710,  741,  983 

Troost  ?'.  Davis  1128 

Troth  V.  Hunt  1439 

Trotter  u.  Erwin  218,  1204,  1209 

V.  Hughes     713,  741,  748,  752, 

755,  760,  762 

V.  White  1681 

Troughton  v.  Binkes  1099 

Troup  V.  Haight  537,  1496 

Trow  V.  Berry  1265,  1269 

Trowbridge  v.  Harleston  1629 

Troy  V.  Smith  627 

Troy  City  Bank  v.  Bowman  1466 

Trucks  V.  Lindsey  262,  279,  295, 

329 

True  V.  Haley  1056 

Truebody  v.  Jacobson  192 

Truesdale  v.  Ford  600 

Trull  V.  Bigelow  574 

V.  Eastman  867 

V.  Fuller  447 

V.  Skinner  252,  1046 

Trulock  V.  Roby  1122,  1164,  1171 

Truman  v.  McCollum  84,  539 

Truscott  V.  King       343,  365,  368,  369, 

372,  562 
Trusdell  v.  Jones  647,  648 

Trustees  of  Jefferson  College  v. 

Dickson  729 

Trustees  of  Schools  v.  Snell  1612 

Trustees    of    Union     College    r. 

Wheeler       475,  601,  791,  834,  842, 

843,  844,  982 

Tryon  v.  Munson  48 

V.  Sutton  65,  1355,  1462 

Tuck  V.  Calvert  227 

V.  Hartford  F.  Ins.  Co.  397 

Tucker  v.  Alger        355,  927,  931,  935 

V.  Buffum  1133 

V.  Conwell  1333 

V.  Fenno  133,  1252,  1892 

V.  Field  65 

V.  Keeler  672 

V.  McDonald  1217 

V.  Tilton  587 

V.  Tucker  393 

V.  West  623 

V.  White  1052 

Tuder  v.  Nort-is  1397 

Tufts  V.  Maines  1273 

TuU  V.  Owen  330 

Tully  V.  Harloe  374,  627 

Tunstall  v.  Trappes  570 

Turk  V.  Ridge  677 

Turner  v.  Bonchell  1767 

V.  Horner  191,  212,  216 

Ixxxv 


TABLE   OF    CASES. 


Reference  is  to  Sections. 


Turner  y.  Johnson  1767 

V.  Kerr  266,  267,  268,279 

V.  Lassiter  240 

V.  Qiiincy  Ins.  Co.  408 

V.  Turner  1107 

v.  Watkins  1769 

Turnipseed   v.  Cunningham  279 

Tuthill  V.  Dubois  558 

V.  Tracy         1751,  1893,  1894, 

1904 

Tuttle  V.  Brown  848,  1282 

V.  Jackson  600 

V.  Turner  84 

Twitchell  v.  McMurtrie  538,  787. 

834,  845 
Twogood  V.  Stephens  731,  982 

Twopenny  v.  Young  862 

Tylee  v.  Webb  1397 

V.  Yates  651,  932 

Tyler  on  Fixtures  441 

Tyler  r.  Lake  867 

I'.  Thomas  599 

Tyron  v.  Munson  1355 

Tyrwhitt  v.  Tyrwhitt  '857 


u. 


Uhler  V.  Hutchinson  462,  463 

Umfreville  v.  Keeler  241 

Underbill  v.  Atwater  362,  1592 

Underwood  v.  02;den  572 

Union  Bank  v.  Bell    1397,  1420,  1441, 

1493 
V.  Emerson  435 

Union  Bank  of  Louisiana  v.  Staf- 
ford 1204 
Union  Ins.  Co.  v.  Van  Rensselaer 

1611,  1688 
Union   Nat.  Bank   of  Rahway  v. 

Pinner  1504 

Union  Trust  Co.  v.  St.  Louis,  &c. 

R.  Co.  1520 

Union    Water    Co.    v.    Murphy's 

Flat  Flaming  Co.       147,  1509,  1579 

United  States  o.  Athens  Armory       26 

r.  Crookshank  927 

V.  Hooe      365,  367,  377 

V.    New       Orleans 

Railroad      158,  431 
V.  Sturges  367,  827 

United  States  Bank  v.  Covert  606 

United  States  Ins.  Co.  v.  Shriver    469 
Upham  i\  Bradley  705 

Upperton  v.  Harrison  1708 

Upshaw  V.  Hargrove  205 

Upton  V.  Archer  90,  91 

Ixxxvi 


Upton  V.  Craig  629 

V.  Nat.  Bk.  of  South  Read- 
ing 357,  1079 
Usborne  v.  Usborne  684 
Usher  V.  Livermore  269 
Utley  V.  Smith                                    380 


Vail  V.  Foster 

V.  Jacobs  1^ 

Valentine  v.  Havener 
V.  Teller 
V.  Van  Wagner 

Valle  V.  Am.  Iron  Mountain  Co 

Vallejo  Land  Assoc,  v.  Viera 

Valletta  v.  Bennett 

Van  Auken  t'.  Dunning 

Van  Baumback  v.  Bade 

Van  Bergen  v.  Demarest 

Van  Bokkelen  v.  Taylor 

Van  Brunt  v.  Mismer 

Van  Buren  v.  Olmstead 


207,  1713 

1873,  1895,  1909 

1395 

1663 

76 

1015 

1654 

27 

663 

1321 

1813,  1818 

976 

678 

309,  337, 


896,  1069,  nil,  1122,  1123,  1124 
Vanbussum  v.  Maloney  1641,  1672 
Vance  v.  Johnson  51 

V.  Lincoln  281,  288 

Vandeever  v.  Holcomb  1425,  1479 

Vandegraaff  v.  Medlock  401 

Vandegrift  v.  Herbert  308,  337 

Vandercook  v.  Cohoes  Sav.  Inst. 

792,  1087,  1576,  1668 

Vanderhaise  v.  Hugues  250,  1060, 

1128,  1140 

Vanderkemp  v.  Shelton  472,  558,  736, 

848,  1395,  1396,  1425,  1439,  1580, 

1651,  1720 

Vanderpoel  v.  Van  Allen  431,  444 

Van  Deusen  v.  Frink  630,  984 

Van  Deventer  v.  Stiger  1592 

Van  Doren  v.  Todd  194,  207,  209 

Van  Dusen  v.  Worrell 

Van  Duyne  v.  Thayre 


309,  341 

14,  666,  715, 

1093,  1205 

580 

90 

458 


V.  Vreeland 
Van  Etta  v.  Evanson 
Van  Heusen  v.  Radcliff' 
Van  Hook  I'.  Throckmorton  1663,  1664 
Van  Hoozer  v.  Cory  150 

Van  Horn  v.  Bell  91 

V.  Keenan  103 

Vanhorn  v.  Duckworth  1395 

Vanhouten  v.  McCarty  1502 

Van  Husan  v.  Kanouse  893 

Van  Keuren  v.  Corkins     474,  791,  964 
Vanmaker  v.  Van  Buskirk  915 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


185 

345 

1401, 1407 

966,  967 

562,  722,  1631 

894 

689,  696 

934 

574 

140 

1701 

1698 


Vanmeter  v.  McFaddin 

I',  ^'anraeter 

Van  Xest  r.  Latson 

Vannice  i'.  Bersjen 

Van  Orden  r.  Johnson 

Vanpell  v.  Woodward 

Van  Pelt  v.  McGraw 

Van  Rensselaer  v.  Akin 

V.  Clark 

V.  Dennison 

r.  Stafford 

Van  Reper  v.  Williams 

Vansant  v.  Allman       27,  72,  817,  936, 

950,  1218,  1220,  1511,  1567,  1699, 

1789 
Van  Schaick  v.  Edwards  661 

Van  Sickle  v.  Palmer  631,  645 

Van  Slvke  ('.  Sheldon  1751,  1822 

Van  Thornilv  v.  Peters     99,  463,  527, 

532 
Van  Vronker  v.  Eastman     1061,  1139, 
1172,  1398 
Van  Wagenen  v.  Brown  848 

V.  Hopper  580 

Van  Waaoroner  r.  McEwen  1500,  1502 
Van  Warner  v.  Van  AVagner  265,  357 
Van  Wyck  v.  AUiger  693 

Varden    Seth    Sam  v.  Liickpathy 


Royjee  Lallah 
Varian  v.  Stevens 

184 
1444 

Varick  v.  Briggs 

475,  560,  582 

V.  Crane 

660 

Varnum  v.  Abbott 

1292 

V.  Meserve    1695,  1792,  1925, 

1931 

Vartie  v.  Underwood 

114 

Vason  V.  Ball 

26,  433 

Vasser  v.  Vasser 

246,  250,  303 

Vaugh  V.  Wetherell 

671 

Veach  v.  Schaup 

1395,  1425 

Vechte  v.  Brownell 

1806,  1819 

Veeder  v.  Fonda 

1612,  1645 

Vennum  v.  Babcock 

1U46 

Verges  v.  Giboney 

901,  990 

V.  Prejean 

497 

Vermilyea  v.  Beatty 
Vernon  v.  Betliell 

960 
1042 

V.  Smith 

400 

V.  Vawdry 

1143 

Very  v.  Watkins 
Vesey  v.  Ockington 

1215 
643 

Vickers  v.  Cowell 

1382 

Vickery  v.  Dickson 

634,  641 

Villa  V.  Rodriguez 

251 

Vint  V.  Pailgett 

1083 

Vinton  v.  King      110, 

610,  1296,  1297 

Virgin  v.  Brubaker 

466 

I  Virginia  v.  Ches.  &    Ohio    Canal 

I      Co.  877 

i  Viser  I'.  Scruggs  118 

Vliet  V.  Camp  90 

Voorhees  v.  McGinnis      429,  431,  445, 

446 
Voorhies  v.  Frisbie  1232 

Voorhis  v.  Freeman  451 

Vose  V.  Hardy        813,  817,  1298,  1308 
Vreeland  v.  Jacobus  1694 

V.  Loubat  1402 

Vroom  V.  Ditmas         1084,  1111,  1568, 
1602,  1654,  1921 
Vrooman  v.  Turner  116,  753,  760 

Vroome  v.  Van  Home  960 


W. 

Waddell  D.  Hewitt  1711 

Wade  V.  Beldmeir  858 

V.  Coop  1068 

V.  Harper  1898 

V.  Howard     856,  861,  889,  982, 

1298 

V.Miller  1589 

Wade's  case  6,  1088 

Wadsworth  v.  Loranger  301 

V.  Williams  858,  864 

Wahl  u.  Phillips  936,  1218 

Wainscott  r.  Silvers  1577 

Waite  V.  Dennison  1876 

V.  Dimick  278 

Wake  V.  Hart  1673 

Wakefield  v.  Johnson  240 

Wakeman  ;;.  Banks  667 

V.  Grover  1439 

Walbridge  v.  Day  1333 

Walcop  V.  McKinney  39,  702 

Walcutt  V.  Spencer     1276,  1285,  1305 

Walden  v.  Brown  1088 

Waldo  V.  Rice  1152,  1156 

V.  Williams  1018 

Waldron  v.  Letson  1655 

Wales  V.  Mellen  80,  668,  1289 

V.  Sherwood  741,  752 

Walker  v.  Bank  of  Mobile    1373,  1426 

V.  Baxter       729,  848,  870,  871 

V.  Cockey  1808 

V.  Covar  1628 

I'.  Dement  606,  822,  838 

v.  Ebert  616 

r.  Hallett  1591,1619 

V.  Jarvis  1439,    1577,  1586 

V.  Johnson  52 

V.  King  54,  869,  877 

V.  McConnico  349 


Ixjfxvii 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Walker  v.  Oxford  Woollen  Manuf. 

Co.  671 

V.  Paine  349,  381 

V.  Schum  1653,  16  73 

V.  Sellers  1609 

V.  Sherman  447 

V.  Sraallwood  1373 

V.  Snediker  374,  377,  947 

V.  Thayer         720,  1256,  1257 

V.  Tiffin  Mining  Co.    244,  246 

V.  Tracey  1355 

V.  Walker  321,  322 

V.  Williams  212,   1338 

V.Wilson  1503 

Wall  w.  Ambler  1335,1449 

V.  Nay  1345 

Wallace  v.  Blair  848 

V.  Dunning  1488 

V.  Goodali  802,  808 

V.  Harnstad  90 

V.  Hussey  1513 

V.  Stevens  1091 

Walle  V.  Arnold  184  7 

Wallenu.  Huff  1148 

Waller  v.  Harris  1107,  1425 

V.  Tate  1229 

Walling  V.  Aiken  1083 

Wallis  V.  Long  974 

V.  Rhea  481 

Wall  St.  Fire  Ins.  Co.  v.  Lord      1527, 

1533 

Walmsley  v.  Milne  444 

Walrath  v.  Campbell  125 

Walsh  V.  Brennan  271 

V.  Colden  1751 

V.  Macomber  1897 

V.  Rutgers  F.  Ins.  Co.        1123, 

1395,  1681 

V.  Young  105 

Walter  v.  Klock  332 

V.  Lind  641 

Waltermire  v.  Westover        1203,  1204 

Walthall  V.  Rives  672,  711,  712,  1876 

Walton  V.  Cody  60',  1443 

V.  Cronley  785 

V.  Hargroves         201,  202,  204 

V.  Withington  1114 

Walworth   v.   Farmers'  Loan  and 

Trust  Co.  1617 

Wandle  v.  Turney  1098 

Waples  V.  Jones  650,  654 

Warburton  v.  Lauman  528 

Ward  V.  Carttar  1198 

V.  Cooke  364,  372 

V.  Gunn  1282,  1295 

V.  Hague  562 

V.  James  1634 

Ixxxviii 


Ward  V.  McNaugbton 

1690 

V.  Montclair  R.  R.  Co. 

1685 

V.  Sharp 

1499 

V.  Swift 

1535 

V.  Van  Bokkelen 

1426 

V.   Wolverhampton  Water 

Works  Co.  1043 

Warden  v.  Adams    580,  786,  787,  806, 
817, 821, 1701 
Ware  v.  Lord  Egmont  591 

Wareham  v.  Brown  129 

Warehime  v.   Carroll    Co.  Build. 

Ass'n  1443,  1829 

Waring  v.  Cunliffe  650 

V.  Loder       398,  409,  412,  418 

V.  Smythe  44 

Wark  V.  Willard  561,  679 

Warner  v.  Blakeman    943,  1799,  1898 

V.  Brooks  349,  678,  1295 

V.  Crouch  lOG 

V.  Gouverneur  788,  832,  1498. 

1516,  1521,  1532 

V.  Helm  1545 

V.  Scott  207 

V.  Van  Alstyne  193,  222 

V.  Winslow  472,  541,  546 

Warren  v.  Boynton  1625 

?;.  Fenn       189,  190.  193,  198, 

202 

V.  Foreman  1576,  1670 

V.  Homestead  787 

V.  Leland  1873 

V.  Lovis  241,  244 

V.  Van  Brunt  177 

V.  Warren  848,  869 

V.  Winslow  474 

Warrick  v.  AVarrick  586 

Wartemberg  v.  Spiegel  624 

Washburn  v.  Goodwin  1056,  1229 

V.  Merrills  289 

Washington   Build.  &  Loan  Ass'n 

V.  Beaghen  728 

Washington  Fire  Ins.  Co.  v.  Kelly  411 
Washington  Life  Ins.  Co.  v.  Fleis- 

chauer  1524 

Washington  University  v.  Finch    1800 

AVasson  v.  Davis  207 

Waterfall  v.  Benistone  435 

Waterman  v.  Curtis      644,  1105,  1133 

U.Hunt  1701 

V.  Matteson     49,  687,  688, 

689 

Waters  v.  Groom  1883 

V.  Jones  972 

V.  Randall  252 

V.  Stewart  44 

V.  Waters  982 


TABLE   OF   CASES. 


'Reference  is  to  Sections. 


Watkins  t'.  Baird  626 

V.  Cason  938 

V.  Gregory  244 

V.  Hill  924,  926 

V.  Stockett  299,  1060 

V.  Williams  1063 

Watkinson  v.  Root  651 

Watson  V.  Bell  240 

V.  Bondurant  1338 

V.  Campbell  537 

V.  Church  »  1420 

V.  Dickens  303,  383 

V.  Hawkins  1228 

r.  Hunter 

V.  Spence 

V.  Thurber 

V.  Wells 

Watt  V.  Alvod 

V.  Watt 

V.  White 

Watts  V.  Symes 

Waugh  V.  Riley 

Wayman  ;;.  Cochrane 

Wayne  v.  Hanham 

Wearse  v.  Peirce    612,  616 


Weatherby  v.  Slack 
V.  Smith 
Weathersly  v.  Weathersly 
Weaver  v.  Barden 
V.  Belcher 
V.  Twogood 
V.  Wilson 
Webb  V.  Borke 

V.  Flanders 


685 

715,  1406,  1578 

114 

191 

1420 

1411,  1488 

212 

868 

917 

812,  924,  936 

1773 

632,  1297, 

1298 

1620,  1621 

635,  1606 

267,  303 

458 

776 

1621 

1508 

711 

807 


V.  Hoselton   40,  112,  1747,  1769 


V.  Mallard 

V.  Maxan 

V.  Meloy 

V.  Nightingale 

V.  Patterson 

V.  Rice 

V.  Robinson 

V.  Stone 
Webber  ii.  Farmer 
Weber  v.  Zeimet 
Webster  v.  Bailey 
V.  Calden 
V.  Vandeventer 


1395, 


1359 

1425 

854 

1275 

250 

277,  292,  309 

201,  204,  212 

71 

283 

740 

828 

700 

135,  795, 


Wedge  V.  Moore 
Weed  V.  BeeVje 

V.  Covin 

V.  Lyon 

V.  Stevenson 


799,  1283,  1293 
Van  Steenbergh  458, 

560,  580,  600 


666 

1439 

72,  1225 

550 

241,  244,  1403 


Weed  Sewing  Machine  Co.  v.  Eni- 

106,  746,  748,  823 


Weeks  v.  Eaton 
V.  Haas 
V.  Thomas 
Weide  v.  Gehl 
Weider  v.  Clark 
Weil  V.  Howard 


802,  808 

114 

1116 

254,  264,  302 

293 

1220,  1348 


Weilder  v.  Farmers'  Bank  591 

Weiner  v.  Heintz  870,  954,  1047, 

1052,  1459 
922,  959,  966,  967 
1047,  1569 
775 
743 
808,  811 
848,  1080 
212 
664, 1061, 1069 


Weir  V.  Mosher 
Weiss  V.  Ailing 
Welch  V.  Adams 

V.  Beers 

V.  Priest 
Weld  V.  Sabin 
Wellborn  v.  Williams 
Wellincrton  v.  Gale 


206,  212,  235,  265, 

286 

1663 

225 

1751,  1784,  1858 

462,  529 

1243 


Wells  V.  Morrow 

V.  Pierce 
V.  Smith 
V.  Wells 
Welton  V.  Tizzard 
W^endell  v.  Abbott 

V.  New  Hampshire  Bank  1088 
Werden  v.  Hawes  620 

Wernwag  v.  Brown  1590 

Wertz's  appeal  461,  1355 

Wescott  V.  Gunn  3  74 

West  V.  Chamberlain  952 

V.  Davis  1670 

V.  Hendrix       265,  275,  286,  326 
329 
870,  977 
1697 
1176, 
1654 
644 


V.  Hindsey 
V.  Reed 
V.  Shryer 
West  Branch  Bank  v.  Chester 

Westerfield  v.  Bried 

Western    Bank    of     Scotland    v. 

Tallman  134 

Western  Ins.    Co.  v.  Eagle  Fire 

Ins.  Co.  1579,  1698 

Western  Mass.  Ins.  Co.  v.  Riker  423 
Western  Reserve  Bank  v.  Potter  1426 
Westervelt  v.  Haff  458 

V.  Scott  788 

Westfall  V.  Jones  842 

Westgate  v.  Handlin  1634,  1751,  1847 
Weston  V.  Mowlin  11 

West  Point  Iron  Co.  v.  Reymert  537 
Wetherell  v.  Collins  1100,1111 

W^etherell,  ex  parte  182 

Wetmore  v.  Roberts  1127,  1128,  1751 
Wetzler  v.  Schaumann  1641 

Whalley  v.  Small  555 

Ixxxix 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Wharf  V.  Howell 

275,  277 

Wheaton  v.  Phillips 

112 

V.  Vooi'his 

1493 

Wheeland  v.  Swai-tz 

264 

Wheeler  ;;.  Bates 

703 

V.  Kirtland 

470 

V.  Morris 

1067,  1421 

-    V.  Ruston 

266 

*;.  Scully 

1751 

V.  Wheeler 

959 

V.  Willard 

869,  877 

Wheelwright  v.  De  Peyster 

562,  723 

V.  Freeman 

1290, 

1292, 

1293,  1298 

V.  Loomer 

951 

Whelan  v.  Riley 

1799 

Whichcote  v.  Lawrence 

711 

Whitbeck  v.  Rowe       1618, 

1670, 1672 

Whitbread  v.  Jordan 

179,  591 

Whitbread,  ex  parte 

862 

Whitcomb  v.  Minchin 

1878 

V.  Simpson 

886 

V.  Sutherland 

242,  324, 

1067 

White  V.  Bond 

1061,  1069 

V.  Brown               420 

,  421,  1135 

V.  Carpenter 

594 

V.  Coulter        1351, 

1420,  1668, 

1669,  1670 

V.  Denman      99, 

463,  532,  533, 

556 

V.  Downs        191, 

212,  219,  229 

V.  Evans 

1654 

V.  Ewer 

272,  1144 

V.  Hampton 

555,  870,  877, 

848,  1072 

V.  Hyatt 

66,  1462 

V.  Knapp 

848 

V.  McNett 

109,  110,  111 

V.  Moore 

546 

V.  Patten 

561 

V.  Polleys 

1632 

V.  Rittenmyer 

13,  14,  29 

V.  Storey 

109 

V.  Stover 

191,  212 

V.  Sutherland 

838 

V.  Turner 

641 

V.  Wakefield 

205 

V.  Watkins 

1333,  1790 

V.  Watts 

1618 

V.  Whitney 

664 

V.  Williams 

198,  212,  216, 

1498 

V.  Wilson 

99,  529 

Whitecar  v.  Worrell 

1355 

Whitehead  v.  Hellen 

1876 

V.  Wooten 

1526,  1521 

White  Water  Valley  Co.  v.  Val- 

lette  178 

Whitfield  V.  Parfitt  284 

Whitfield,  ex  parte  1526 

Whiting  V.  Beebe  947 

'  V.  Eichelberger  166 

V.  White  1163,  1171 

Whitla  I'.  Halliday  1428 

Whitmore  v.  Shiverick  41 

Whitney  v.  Allen  1586 

V.  Batchelder  298 

V.  Buckman  65,  71,  136,^ 

1454* 

V.  Buckram  1462 

V.  French  242,  915 

V.  Guild  1244,  1257 

V.  M'Kinney  1100,  1373, 

1374,  1426 

V.  Townsend  258 

Whipple  V.  Barnes        1193,  1204,  1215 

Whistler  v.  Webb  1100,  1 1 11 

Whitridge  y.  Taylor  1234 

Whitson  V.  Yerg  191 

Whittacre  v.  Fuller  565,  730,  942 

Whittaker  v.  Dick  924,  929 

Whittelsey  u.  Hughes  1788 

Whittemore  v.  Gibbs  42,  808 

Whittick  V.  Kane  309,  549,  1060 

Whittier  v.  Dow  1291 

Whittlesey  v.  Beall  1462 

Whitton  V.  Whitton  385 

Whitworth  v.  Rhodes  1799,  1801, 

1803 

Whyman  v.  Garth  1455 

Wicke  V.  Lake  1579 

Wic'kenden  v.  Rayson  1439 

Wickersham  v.  Reeves  870 

Wickham  v.  Robinson  223 

Wicks  V.  Perkins  1236 

V.  Scrivens  1065 

Wigan  V.  Jones  1897 

AVigg  V.  Wigg  581 

Wiggin  V.  Hey  wood  665,  1934 

Wightman  v.  Gray  1711 

Wikoff  W.Davis  1620,1621 

Wilcox  V.  Bates  320 

V.  Howell  631,  645 

V.  Howland  652 

V.  Todd  114 

V.  AVilcox  123 

Wilder  v.  Haughey     1343,  1539,  1548 

V.  Houghton  667,  771 

V.  Whittemore  391,  1310 

Wildey  v.  CoUier  618 

Wildgoose  v.  Wayland  580 

Wiley  V.  Angel  1673 

V.  Ewing  1048,  1064,  1425 


xc 


TABLE    OF   CASES. 


Reference  is  to  Sections. 


Wiley  V.  Knight 

627 

V.  JMoore 

90 

V.  Pin  son 

1359,  1378 

Wilhehu  v.  Lee 

34,  1215 

Wilheluii  v.  Leonard 

848,  849,  931 

Wilkes  V.  Collin 

857 

V.  Smitli 

233 

Wilkins  r.  French 

33,  664 

V.  Fry 

1367,  1369 

V.  Gordon 

1775,  1776 

V.  Wilkins 

1401,  4414 

V.  Wright 

1769 

Wilkinson  v.  Cheatliam 

117 

V.  Daniels 

1434,  1609 

V.  Flowers 

1195,  1204, 

1210,  12 

11,  1215,  1439 

V.  Sterne 

906,  908 

Willard  v.  Boggs 

1800 

V.  Eastham 

107,  109,  110 

V.  Fiske 

1088 

V.  Harvey 

783,  891 

V.  Henry 

1262,  1269 

V.  Reas 

191,  208 

Willard,  ex  parte 

1055,  1063 

Willets  V.  Burgess 

1039 

V.  Van  Alst 

1644 

Willett  V.  Winnell 

7,  1042 

Williams  v.  Ayrault 

657 

V.  Beard 

517 

t;.  Birbeck 

472,  547 

V.  Bishop 

293, 324 

V.  Bosanquet 

785 

V.  Cheatham 

335 

V.  Christian 

212,  215 

V.  Creswell 

1478 

V.  Crutcher 

90 

V.  Evans 

437 

V.  Fitzhugh 

620,  657,  658 

V.  Hance 

637 

V.  Hatch 

99 

V.  Hayward 

110 

V.  Hilton 

350,  1382 

V.  Meeker      1401,  1410,  1606 

V.  Morancy 

813 

1'.  Owen     264, 

275,884,1043 

V.  Perry 

1621 

V.  Roberts 

191,  207 

V.  Robinson 

1482, 1516, 

1523 

V.  Roger    Wil 

iams   Ins. 

Co. 

397 

V.  Smith 

1100 

V.  Starr 

355, 924 

V.  Storrs 

1389 

V.  Stratton 

185,  335 

V.  Tatnall 

461,  582 

V.  Terrell 


1331 


Williams  ;;.  Thorn  339,  340,  548 

V.  Thurlow  746 

V.  Townsend  713,  1080, 

1175 

V.  Waldo  1663 

V.  Walker  964 

V.  Woodruflf  1641 

V.  Young  212 

Williams's  case  1539,  1573 

Williamson  v.  Andrew  678 

V.  Berry  1608 

V.  Borry  1638 

U.Brown         579,580,584 

V.  Champlin        1351,  1511 

V.  Dale  1640 

V.  Doe  1321 

V.  Downs  1079 

t'.  Field     1397,1401,1406, 

1643 

V.  New  Albany  R.  Co. 

1520 
V.  N.  J.  Southern  R. 

R.  Co.  1383 

V.  Probasco  1439 

Willink  V.  Morris  Canal  &  Bank- 
in"-  Co.  593,  608,  1383,  1438 
Willis  V.  Farley  1324,  1584 
V.  Henderson               1398,  1399 
V.  M'Intosh  1047 
V.  Searcy  224 
V.  Twombly  104 
Willis,  ex  parte  171 
Willoughby  i;.  Willoughby                458 
Wilmarth  v.  Bancroft                        455 
Wilmer   v.  Atlanta  &   Richmond 

Air  Line  R.  Co.  1616,1859 

Wilshaw  V.  Smith  890 

Wilson  V.  Bennett  1787 

V.  Boyce  65,  178 

V.  Carpenter  837 

V.  Drumrite  250,  304 

V.  Fatout  815 

V.  Geisler  1540,  1545 

V.  Graham  207 

V.  Hart  600 

V.  Harvey  684 

V.  Hayward  1378,  1699 

r.  Hill  396,  401 

r.  Hooper  54 

1-.  Hunter  121,  141 

r.  Keating  200 

V.  Kimball  848 

V.  King  67,  750 

V.  Lyon  191,  192,  204,  210 

V.  Maltby  689,  693 

V.  McCollough  580,  1352 

V.  McDowell  293,  323 

xci 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Wilson  V.  Metcalfe 
V.  Patrick 
V.  Richards 
V.  Rin^ 


1140 

250,  295,  329 

305, 1159 

673 


V.  Russel      366,  370,  372,  376, 
377 
V.  Schoenberger  244,  248 

V.  South  Park  Commission- 
ers 1902 
V.  Spring                     1427,  1789 
V.  Troup  129,  547,  1751,  1768, 
1784,  1785,  1787,  1789, 
1790,  1796 
V.  Watts  631 
V.  Wilson             136,  137,  1918 
Wilson,  ex  parte                                  439 
Wilton  V.  Jones                                 1098 
Wiltshire  v.  Smith  890 
Winchester  v.  Ball                            1269 
V.  Baltimore  347 
V.  Susquehanna  R.  Co.  589 
Winebrener  v.  Johnson                    1436 
Wing  I'.  Cooper      272,  277,  317,  1760 
V.  Davis                                    1100 
V.  Goodman                       191,  212 
V.  McDowell                     569,  576 
Winne,  in  re                                        1233 
Winslow  V.  Clark         1097,  1100,  1233 
V.  McCall        715,  1687,  1751, 
1930 
V.  Merchants'  Ins.  Co.      433, 
436,  441,  445,  446 
Winter  v.  Lord  Anson      196,  198,  586 
Winterbottom  v.  Tayloe                   1059 
Winters  v.  Henderson                       1621 
Wires  v.  Nelson  682 
Wisconsin  Bank  v.  Morley  612 
Wise  V.  Wise  579 
Wiseman  v.  Hutchinson  212 
Wisner  v.  Farnham                           1420 
Wiswall  V.  Sampson                           1522 
Wiswell  V.  Baxter        1204,  1215,  1715 
Wiltshear  v.  Cottrell                           448 
Witczinski  v.  Everman             364,  372 
Witherell  v.  Collins                           1602 
Withers  v.  Cod  wise                           1502 
V.  Mornell                 1500,  1502 
Wofford  V.  Board  Police  of  Holmes 

Co.  17  73 

Wolbert  v.  Lucas  736 

Wolcott  V.  Schenck  1351,  1617,  1637, 

1672 

V.  Weaver  146  7 

V.Winchester    467,804,811, 

817,  818,  1282,  1301 

Wolcutt  V.  Spencer  1296 

Wolf  V.  Banning  1406,  1424 

xcii 


Wolf  V.  Heath 
V.  Smith 
Wolfe  V.  Dowell 
Wolverton  v.  Collins 
Womble  v.  Battle 
Wood  V.  Augustine 

V.  Chapin 

V.  Cochrane 

('.  Colvin 

V.  Felton 

V.  Goodwin 

V.  Lester 

V.  Mann 

V.  McClughan 


1334 
722 
973 

84 

190,  191 

1204,  1897 

458,  467,  560 

533,  538 

1899 

1116 

1063 

190 

1642,  1643 

978 


V.  Moorehouse  1414,  1612,  1838 

V.  Robinson  459 

V.  Shields  1550 

V.  Stanberry  1353 

V.  SuUens  191 

V.  Surr  1566 

V.  Trask  57,  606,  822,  1699 

V.  Williams  1384,  1388 

Wood's  appeal  542,  552,  1093 

Woodard  v.  Fitzpatrick  1586 

Woodbury  v.  Aiken  972 

0.  Fisher  85,  539 

V.  Manlov  1333 

Wooden  i;.  Haviland  97,  1482 

Woodford  v.  Brooking  1572 

Woodhull  V.  Osborne  1351 

V.  Reid  870 

Woodlee  v.  Burch  712 

Woodman  v.  Francis  455 

Woodruff  V.  Cook  709 

V.  Depue      13  75,  1383,  1426 

V.  Halsey  695 

V.  Robb  62,  271,  1769 

Woods  V.  Hilberbrand  39,  716 

V.  Love  1412 

V.  Spalding  1623 

V.  Wallace  277,  531 

V.  Woods  674 

Woodville  V.  Read  386 

Woodward  v.  Cowdery  1569 

V.  Phillips  1112,  1126 

V.  Pickett         273,  455,  697 

I'.  Wood  1100,1368 

Woodworth  v.  Bennett  619 

V.  Guzman  60,  572 

V.  Morris  258 

Woollen  V.  Hillen  605 

Work  V.  Harper  533 

Worley  v.  Nay  lor  1838 

Worsham  v.  Hardaway  1647 

Worsley  v.  Earl  of  Scarborough     599, 

1411 
Worster  v.  Great  Falls  Co.  1244 


TABLE   OF   CASES. 


Reference  is  to  Sections. 


Worlhr.  Hill  1576,  1G21 

Worthington  v.  Bicknell  901 

V.  Lee     1388,  1401,  1411 

V.  Morgan  G04,  863 

Worthy  V.  Warner        924,  1272,  130G, 

1316 
Wotner  I'.  Wright  1708 

Wragg  V.  Conip.  Gen.  191 

Wrio'ht  V.  Austin  114 

V.  Bates         250,  251,  273,  317 
V.  Burdy     124,  611,  644,  1383, 
1439,  1494,  1769 
V.  Cooper  16 

w.  Eaves  915,1202 

V.  Henderson  52 

V.  Holbrook  222 

V.  Howell  1396 

V.  Lake  694 

V.  Lano-ley        358,  1200,  1420, 
1718 
V.  Morley  1068 

V.  Nutt  1628 

('.Parker  821,822,1701 

V.  Rose  1695,  1792,  1927,  1931 
V.  Shumway  176,  331,  1471 
I'.  Sperry  672,  673 

V.  Whithead  1049 

Wright,  ex  parte  183 

Wrixon  v.  Vize  1142 

Wrout  V.  Dawes  908 

Wureherer  v.  Hewitt  1439 

Wyatt  i;.  Barwell  571,  573 

V.  Stewart  481 

Wych  u.  East  Ind.  Co.  1195 

Wvckoif  V.  Remsen  539,  545 

Wylie  v.  McMakin  1181 

Wyllie  V.  Pollen  587 

Wyman  v.  Babcock  285 

?;.  Hooper  811,868,981 

Wynkoop  v.  Cowing      293,  1039,  1046 
Wynn  v.  Cai-ter  46  7 

V.  Lord  Newborough  1535 

Wynne  r.  Styan  1063,1198 

Wythes  v.  Lee  223 


Yancy  v.  Mauck  191,  225 

Yarborough  v.  Wood  191,  214 

Yarbrough  v.  Newell     315,  1148,  1159 

Yard  v.  Eland  762 

Yaryan  v.  Shriner  191,  207,  209 

Yates  V.  Aston  70 

V.  Hanibly  1153 

V.  Joyce  696 

V.  Yates  250 

Yelverton  v.  Sheldon      368,  377,  1100 

Yeonians  v.  Rexfoi'd  936 

York  V.  Allen  1502,  1633 

York  Building  Ass'n  v.  MacKenzie 

1878 

York  Manuf.  Co.  v.  Cutts  1293 

Youle  V.  Richards  251,  308 

Young  V.  Atkins  235 

V.  Bloomer  1673 

V.  GrafE  109,  114,  1785 

V.  Hunter  901 

V.  Keogh  1637 

V.  McKee  104 

U.Miller        813,817,819,837, 

1280 

V.  Roberts  1787,  1795 

V.  R.  11.  Co.       1432,  1439,  1524 

V.  Ruth  1229 

V.  Tarbell  464 

V.  Thompson  548 

V.  Ward  1397 

V.  Williams  1063,  1086 

V.  Wood  207 

V.  Young  1604 

Youno-man  v.  Elmira,  &c.  R.  Co.      48, 

667,  1773 
Youngs  V.  Wilson  69,  55  7,  563,  627 
Yourt  V.  Hopkins  1861 

Yousei;.  M'Creary  1229 


Yale  I'.  Dederer 


109,  110 


Zabriskie  v.  Smith 
Zane  v.  Kennedy 
Zeiter  v.  Bowman 
ZoUman  v.  Moore 
Zorn  V.  R.  Co. 
Zuver  V,  Lyons 


1389 

129 

1411, 1531 

1654 
458 
295 


xcin 


LAW   OF    MORTGAGES. 


THE   LAW  OF  MORTGAGES 

OF  REAL  PROPERTY. 


CHAPTER   I. 

I.  THE   NATURE    OF  A   MORTGAGE. 

1.  History  of  the  Develojyment  of  the  Laiv. 

1.  Mortgages  used  by  the  Anglo-Saxons.  —  Mortgages,  or  at 
least  pledges  of  land  in  the  nature  of  mortgages,  were  not  un- 
known to  the  Anglo-Saxons  in  England.  In  at  least  two  ancient 
charters  the  transactions  are  clearly  enough  defined  to  show  that 
land  was  given  as  security  for  the  payment  of  money,  though,  as 
to  the  manner  and  form  of  the  transfer,  and  the  rights  of  the  par- 
ties under  it,  very  little  can  be  made  out.  The  most  impoi'tant  of 
these  cases  is  quoted  below. -^     It  appears  from  this  that  the  mort- 

1  The  translation  is  taken  from  a  col-  pounds  to  Goda,  and  beqiteatlied  his  land 
lection  of  essays  of  much  interest  recently  to  Eadgifu,  his  daughter,  and  gave  her 
published  (1876),  entitled  Essays  in  An-  the  charter.  When  he  had  fallen  in  war, 
glo-Saxon  Law,  Appendix,  case  No.  18,  then  Goda  denied  the  return  of  the  money, 
p.  342.  See,  also,  the  Essay  on  Anglo-  and  refused  to  give  up  the  land  till  some 
Saxon  Land  Law,  p.  106.  It  is  to  be  time  in  the  sixth  year.  Then  [her  kins- 
observed  that  Eadgifu  mentioned  in  this  man]  Byrhsige  Dyrincg  firmly  pressed 
document  was  queen  of  Edward  the  Elder,  her  claim,  until  the  Witan,  who  then  were, 
whose  reign  was  from  a.  d.  901  to  925.  adjudged  to  Eadgifu  that  she  should 
"  Eadgifu  makes  known  to  the  archbishop  cleanse  her  father's  hand  by  [an  oath  of] 
and  the  community  of  Christ's  Church  as  much  value  [namely,  thirty  pounds], 
how  her  land  at  Cooling  came  [to  her]  ;  And  she  took  oath  to  this  eifect  at  Ayles- 
that  is,  that  her  father  left  her  land  and  ford,  on  the  witness  of  all  the  people, 
charter  as  he  rightfully  got,  and  his  pa-  and  there  cleansed  her  father  in  regard  to 
rents  left  them  to  him.  It  happened  that  the  return  of  the  money,  with  an  oath  of 
her  fiither  borrowed  thirty  pounds  of  Goda,  thirty  pounds.  Even  then  she  was  not 
and  assigned  him  the  land  in  pledge  for  allowed  to  enjoy  the  land  until  her  friends 
the  money,  and  he  held  it  seven  years,  obtained  of  King  Edward  that  he  forbade 
Then  it  happened  about  that  time  that  all  him  [Goda]  the  land,  if  he  wished  to  enjoy 
Kentish  men  were  summoned  to  Holme  any  [that  he  held  from  the  king]  ;  and  he 
on  military  service  ;  so  Sighelm,  her  father,  so  let  it  go.  Then  it  happened,  in  course 
was  unwilling  to  go  to  the  war  with  any  of  time,  that  the  king  brought  so  serious 
man's    money   unpaid,   and    gave   thirty  charges  against  Goda,  that    he   was  ad- 

VOL.  I.  1  1 


§  2.]  THE   NATURE   OF   A   MORTGAGE. 

gagee  was  in  the  possession  of  the  land,  and  that  he  doubtless  had 
the  use  of  the  land  in  return  for  the  use  of  the  money  loaned 
by  him.  Upon  the  payment  of  the  loan  it  was  his  duty  to  render 
back  the  land  to  the  mortgagor,  and  his  failure  to  do  so  in  this 
case  was  the  occasion  of  litigation,  commencing  in  the  reign  of 
Edward  the  Elder,  extending  through  the  reigns  of  -<Ethelstan, 
Edmund,  Eldred,  and  Edwy,  and  finally  ending  in  the  reign  of 
Edgar.  The  tribunal  was  the  Witan  or  national  assembly,  which 
was  also  the  highest  court  of  law  in  the  kingdom. 

From  another  charter  in  which  reference  is  made  to  a  mortgage, 
it  seems  that  the  title  to  the  mortgaged  land,  at  some  time  and  in 
some  way  not  revealed,  became  vested  absolutely  in  the  mortgagee 
who  conveyed  away  the  land.  Slight  as  the  knowledge  is  which 
these  charters  give  us  in  respect  to  the  law  of  the  Anglo-Saxon 
mortgage  of  real  property,  it  is  of  interest ;  for  while  we  find  the 
elements  of  our  present  system  of  the  law  of  real  property  in  the 
customary  laws  of  the  period  preceding  the  Norman  Conquest,  we 
may  well  expect  to  find  in  this  source  as  well  the  beginnings  of 
the  law  of  mortgage  as  a  part  of  that  system. 

2.  Vivum  vadium.  —  At  a  later  period,  as  is  apparent  from 

judged  to  lose  charters  and  land,  all  that  tied  ;  and  this  was  done  in  the  witness  of 

he  held  [from  the  king,  and  his  life  to  be  King  ^thelstan  and  his  Witan,  atHamme, 

in  the  king's  hands].    The  king  then  gave  near  Lewes.     And  Eadgifu  held  the  land, 

him  and  all  his  property,   charters,   and  with  the  charters,  during  the  daj's  of  the 

lands  to  Eadgifu,  to  dispose  of  as  she  would,  two  kings,  her  sons  [^thelstan  and  Ead- 

Then  said  she  that  she  durst  not,  for  [fear  mund].     Then  Eadred  died,  and  Eadgifu 

of]  God,  make  such  a  return  to  him  as  he  was  deprived  of  all  her  property ;  and  two 

had  merited  from  her,  and  gave  up  to  him  sons  of  Goda  (Leofstan  and  Leofric)  took 

all  his  lands  except  two  hides  at  Oster-  from  Eadgifu  the    two   before-mentioned 

land,  but  would  not  give  up  the  charters  lands  at  Cooling  and  Osterland,  and  said 

before  she  knew  how  truly  he  would  hold  to  the  child  Edwy,  who  was  then  chosen 

them  in  regard  to  the  lands.     Then  King  king,  that  they  were  more  rightly  theirs 

Edward   died,    and    -iEthelstan  took    the  than  hers.      This  then  remained   so,   till 

throne.     When  it  seemed  to  Goda  season-  Edgar  obtained  power  ;  and  he    and  his 

able,   he   went   to   King  ^thelstan,  and  Witan  adjudged  that  they  had  been  guilty 

prayed  him  to  intercede  with  Eadgifu  for  of  wicked   spoliation,  and  they  adjudged 

the  return  of  his  charters;  and  the  king  and  restored  to  her  her  property.     Then, 

then  did   so,    and    she   returned  him    all  by  the  king's  leave  and  witness,  and  that 

except  the  charter  of  Osterland;  and  he  of  all  his  bishops  [and   chief  men],  Ead- 

relinquished  the  charter  voluntarily  to  her,  gifu  took  the  charters,  and  made  a  gift  of 

and  thanked  her  with  humility  for  the  oth-  the  land  to  Christ's  Church,  [and]  with 

ers.     And,  further,  he,  with  eleven  others,  her  own  hands  laid  them  upon   the  altar, 

gave  an  oath  to  her,  for  born  and  unborn,  as   the   property  of  the   community  for- 

that  the  matter  in  dispute  was  forever  set-  ever." 
9 


HISTORY    OF   THE    DEVELOPMENT    OF   THE   LAW.  [§  3. 

the  Domesday,  pledges  of  land  were  frequent.  Later  still,  in 
the  time  of  Glanviile,  pledges  of  land  had  taken  two  distinct 
forms,  the  vivum  vadium  and  the  mortuum  vadium.  The  former 
denoted  a  pledge  of  land  when  the  creditor  took  possession  of  the 
land  under  the  conversance,  and  held  it  for  a  certain  period,  dur- 
ing which  the  rents  and  profits  received  b}'  him  went  towards 
the  payment  of  the  debt.  Upon  payment  of  the  debt  the  debtor 
was  entitled  to  have  his  lands  back  again,  and  might  recover 
them  bj''  suit  if  not  voluntarily  restored.  This  was  apparently 
the  form  of  the  mortffiiffe  referred  to  in  the  Anglo-Saxon  char- 
ter  of  the  tenth  century  already  quoted  ;  and  the  mortgages 
mentioned  in  Domesda}^  seem  to  imply  that  possession  of  the 
property  was  in  the  mortgagee  ;  and  later  still,  in  the  time  of 
Glanviile,  the  possession  seems  usually  to  have  followed  the 
security.  • 

3.  This  form  of  mortgage  is  very  much  like  the  Welsh 
mortgage  of  a  later  period,  which  has  no  condition  by  which 
the  conveyance  is  to  be  void  upon  payment  of  the  debt,  as  in 
the  common  mortgage,  but  the  mortgagee  has  the  possession  of 
the  property  assured  to  him,  and  receives  the  rents  and  profits 
either  in  lieu  of  interest,  or  in  discharge  of  both  principal  and 
interest.  Under  this  form  of  mortgage  the  mortgagee  had  no 
remedy  whatever.  He  could  not  sue  for  the  debt.  There  was 
no  covenant  for  payment,  either  express  or  implied. ^  He  could 
neither  compel  the  mortgagor  to  redeem  nor  cut  off  his  right  of 
redemption  by  foreclosure.  In  this  respect  the  transaction  was 
like  a  conditional  sale.  The  mortgagor  could  redeem  at  his  op- 
tion ;  and  could  enforce  his  right  either  at  law  or  in  equity. 
After  full  payment  of  the  debt  from  the  rents  and  profits,  the 
mortgagor's  right  to  redeem  would  be  barred,  finally,  by  the  lapse 
of  the  statutory  period  of  limitation.  This  form  of  security, 
where  the  rents  were  received  in  lieu  of  interest,  was  afterwards 
called  the  Welsh  mortgage.^ 

1  Howel  V.  Price,  1  P.  Wms.  291  ;  Lon-  mer  the  rents  were  applied  in  satisfaction 
quel  V.  Scawen,  1  Ves.  Sen.  402.  of  the  principal,  in   the  latter  they  were 

2  Rankert  v.  Clow,  16  Tex.  9  ;  Angler  received  in  satisfaction  of  the  interest, 
V.  Masterson,  6  Cal.  61.  The  principal  the  principal  generally  remaining  undi— 
distinction  between  the  ancient  vioum  va-  turbed.  But  there  is  one  form  of  Welsh 
dium  and  the  more  modern  Welsh  mort-  mortgage,  or  of  a  mortgage  in  the  nature 
gage  seems  to  be,  that,  while  in  the  for-  of  a  Welsh  mortgage,  where  the  property 

3 


§  4.]  THE   NATURE   OF   A   MORTGAGE. 

4.  The  mortuum  vadium  was  the  designation  of  a  pledge  of 
land  of  which  the  mortgagee  did  not  necessarily  receive  the  pos- 
session, or  have  the  rents  and  profits  in  reduction  of  the  demand. 
In  the  time  of  Glanville  this  form  of  security  was  looked  upon 
with  much  disfavor  as  a  species  of  usury.  That  the  creditor  was 
liable  to  the  penalties  of  usury  if  he  received  money  for  the  use 
of  the  loan,  and  was  considered  dishonest  as  well,  is  a  sufficient 
reason  why  this  kind  of  security,  though  not  prohibited,  was  then 
seldom  used. 

The  mortumn  vadium  spoken  of  by  Littleton  is  the  common 
law  mortgage.  It  had  then  become  a  conditional  estate  ;  the  con- 
dition being  that  upon  payment  of  the  debt  at  a  fixed  time,  the 
grantor  might  reenter,  but  upon  breach  of  the  condition  the  con- 
veyance became  absolute.^  It  was  at  a  later  day  that  the  equi- 
table right  ^f  redemption  after  forfeiture  became  an  incident  of 
the  mortgage.  The  nature  of  the  transaction  as  a  mere  security 
for  a  debt  was  not  then  regarded,  but  the  rules  applicable  to 
other  estates  upon  condition  were  enforced  with  all  their  strict- 
ness. This  is  illustrated  in  the  statement  of  Littleton,  that  if  the 
condition  was  that  the  debtor  should  pay  a  certain  sum  of  money 
to  the  mortgagee,  no  definite  time  being  fixed  for  the  payment,  if 
the  debtor  died  before  making  payment,  a  tender  of  payment  by 
his  heir  was  void,  because  the  time  within  which  the  payment 
should  be  made  was  past,  the  condition  that  the  debtor  should  pay 
being  as  much  as  to  say  that  he  should  pay  during  his  lifetime. 
But  if  the  condition  was  that  the  payment  should  be  made  b}^  a 
day  certain,  then  if  the  debtor  died  before  that  day,  his  heir  or 
executor  might,  as  his  representative,  tender  the  money  within 
the  time  limited.^ 

is  conveyed  to  the  mortgagee  and  his  heirs,  it  seemeth  that  the  cause  why  it  is  called 

to  hold  until  out  of  the  rents  and  piofits  mortgage  is, for  that  it  is  doubtful  whether 

he  shall  have  received  both  principal  and  the  feoffor  will  pay  at  the  day  limited  such 

interest.     Coote  on  Mortg.  208.  sum  or  not ;  and,  if  he  doth  not  pay,  then 

1  Littleton's  Tenures,  lib.  iii.  c.  5,  §  332.  the  land  which  is  put  in  pledge  upon  con- 

" [Of  Estates  upon  Condition.)    Item:  If  a  dition  for  the  payment  of  the  money  is 

feoffment  be  made  upon   such  condition  taken  from  him  forever,  and  so,  dead  to 

that  if  the  feoffor  pay  to  the  feoffee,  at  a  him  upon  condition.     And  if  he  doth  pay 

certain  day,  forty  pounds  of  money,  that  the  money,  then  the  pledge  is  dead  as  to 

then  the  feoffor  may  reenter;  in  this  case  the  tenant." 

the  feoffee  is  called  tenant  in  mortgage,  -  Litt.    Tenures,   lib.  iii.    c.    5,    §    337. 

which  is  as  much  to  say  in  French  as  mort  "  Also  if  a  feoffment  be  made  upon  con- 

gage,  and  in  Latin  mortuum  vadium.     And  dition  that  if  the  feoffor  pay  a  certain  sum 


HrSTORY    OF   THE   DEVELOPMENT    OF   THE   LAW.         [§§  5,  6. 

5.  Such  restraints  upon  the  free  alienation  of  lands  were 
imposed  after  the  Norman  Conquest  under  the  feudal  system  then 
established  that  it  is  probable  that  mortgages  were  almost  un- 
known in  England  for  the  next  two  hundred  years.^  At  length 
the  statute  of  Quia  Emptores  ^  restored  freedom  of  alienation  to 
all  except  the  immediate  tenants  of  the  crown,  and  not  long  after- 
wards questions  relating  to  the  nature  of  mortgages  and  the  re- 
spective rights  of  the  parties  began  to  receive  the  attention  of 
the  courts  and  of  parliament. 


6.  Growth  of  the  doctrine  of  an  equity  of  redemption.  — 
In  the  latter  part  of  the  reign  of  Elizabeth  it  seems  to  have  been 
an  unsettled  question  whether  an  absolute  forfeiture  of  the  estate 
had  not  been  incurred  by  a  non-payment  of  the  debt  at  the  day 
named  in  the  condition."^  But  the  right  of  the  mortgagor  to  re- 
deem after  forfeiture  seems  to  have  been  a  recognized  right  in 
the  reign  of  Charles  I. ;  ^  yet  even  at  the  close  of  the  reign  of 


of  money  to  the  feoffee,  then  it  shall  be 
lawful  to  the  feoffor  and  his  heirs  to  enter  ; 
in  this  case  if  the  feoffor  die  before  the 
payment  made,  and  the  heir  will  tender  to 
the  feoffee  the  money,  such  tender  is  void, 
because  the  time  within  which  this  ought 
to  be  done  is  past.  For  when  the  condi- 
tion is,  that  if  the  feoffor  pay  the  money 
to  the  feoffee,  this  is  as  much  to  say  as  if 
the  feoffor  during  his  life  pay  the  money 
to  the  feoffee  ;  and  when  the  feoffor  dieth 
then  the  time  of  the  tender  is  past.  But 
otherwise  it  is  where  a  day  of  payment  is 
limited,  and  the  feoffor  die  before  the  day ; 
then  may  the  heir  tender  the  money  as  is 
aforesaid,  for  that  the  time  of  the  tender 
was  not  past  by  the  death  of  the  feoffor. 
Also  it  seemeth  that  in  such  case,  where 
the  feoffor  dieth  before  the  day  of  pay- 
ment, if  the  executors  of  the  feoffor  ten- 
der the  money  to  the  feoffee  at  the  day  of 
payment,  this  tender  is  good  enough  ;  and 
if  the  feoffee  refuse  it,  the  heirs  of  the 
feoffor  may  enter.  And  the  reason  is  for 
that  the  executors  represent  the  person 
of  their  testator."  Followed  in  Alsop  v. 
Hall,  1  Root  (Conn.),  346. 

1  Coote  on  Mortg.  5.     "In   the   twen- 
tieth year  of  William's  reign,  and  on  the 


completion  of  Domesday  Book,  he  sum- 
moned a  meeting  of  all  the  principal  land- 
holders in  London  and  Salisbury,  and 
accepted  from  them  a  surrender  of  their 
lands,  and  re-granted  them  on  perform- 
ance of  homage  and  the  oath  of  fealty. 
The  mesne  lords,  on  their  subinfeudations, 
also  demanded  homage  and  fealty,  and  it 
was  held  the  bond  of  allegiance  was  mut- 
ual, each  being  bound  to  defend  and  pro- 
tect the  other.  From  this  flowed  the  doc- 
trine that  the  tenant  could  not  transfer  his 
feud  M'ithout  his  lord's  consent,  nor  the 
lord  his  seigniory  without  his  tenant's 
consent,  although  the  tenants,  even  of  the 
crown,  it  would  seem,  might  grant  subin- 
feudations (i.  e.  to  hold  of  themselves) 
without  license.  It  was  further  held,  the 
tenant  could  not  subject  his  lands  to  his 
debts  by  execution  of  law,  for,  if  he  could, 
he  might  have  effected  that  circuitously 
which  he  could  not  by  direct  means  have 
accomplished.  Nor,  if  the  lands  came  to 
him  by  descent,  could  he  aliene  them  with- 
out the  consent  of  the  next  collateral  heir." 

2  18Edw.  I.  (a.  d.  1325). 

3  GoodalFs    case,   5   Rep.   96 ;    Wade's 
case,  lb.  115. 

*  Emanuel  College   v.  Evans,  1  Rep.  in 

5 


§  6.]  THE   NATURE    OF    A   MORTGAGE. 

Charles  II.  an  equity  of  redemption  was  declared  to  be  a  mere 
right  to  recover  the  estate  in  equity  after  breach  of  the  condi- 
tion, and  not  such  an  estate  as  was  entailable  within  the  statute 
de  donis}  In  this  case  Chief  Justice  Hale  made  the  often  quoted 
remark,  "  By  the  growth  of  equity  on  equity,  the  heart  of  the 
common  law  is  eaten  out,  and  legal  settlements  are  destroyed." 
He  thought  the  mortgagor's  equity  of  redemption  had  already 
been  carried  too  far.  "  In  14  Richard  II.  the  parliament  would 
not  admit  of  redemption  ;  but  now  there  is  another  settled 
course  ;  as  far  as  the  line  is  given,  man  will  go  ;  and  if  an  hun- 
dred years  are  given,  man  will  go  so  far,  and  we  know  not  whither 
we  shall  go.  An  equity  of  redemption  is  transferable  from  one 
to  another  now,  and  yet  at  common  law,  if  he  that  had  the  equity 
made  a  feoffment  or  levied  a  fine,  he  had  extinguished  his  equity 
in  law ;  and  it  hath  gone  far  enough  already,  and  we  will  go  no 
further  than  precedents  in  the  matter  of  equity  of  redemption, 
which  hath  too  much  favor  already." 

Even  so  late  as  1737  it  was  strenuously  argued  before  the  high 
court  of  chancery,^  that  an  equity  of  redemption  was  not  an  estate 
in  land  of  which  a  husband  was  entitled  to  be  a  tenant  by  the  cur- 
tesy. It  was  insisted  the  equity  of  redemption  was  no  actual  es- 
tate or  interest  in  the  wife,  but  only  a  power  in  her  to  reduce  the 
estate  into  her  possession  again,  by  paying  off  the  mortgage  ;  it 
was  compared  to  the  case  of  a  proviso  for  a  reentry  in  a  convey- 
ance and  no  entry  ever  made,  and  to  a  condition  broken  and  no 
advantage  ever  taken  thereof  ;  that  the  wife  was  never  seised  in 
fee  in  law,  because  the  legal  estate  was  out  of  her  by  virtue  of  the 
mortgage,  but  had  only  a  bare  possession,  and  was  in  receipt  of 
the  rents  and  profits  ;  so  tliat  the  mortgagor  had  merely  a  right 
of  action,  or  a  suit  in  a  court  of  equity,  in  order  that  the  estate 
might  be  reconveyed  to  her  upon  complying  with  the  terms  in 
the  mortgage.  But  Lord  Hardwicke  declared  that  an  equity  of 
redemption  is  an  estate  in  the  land,  for  it  may  be  devised,  granted, 
or  entailed  with  remainders,  and  such  entail  and  remainders  may 
be  barred  by  a  fine  and  recovery,  and  therefore  cannot  be  con- 
sidered as  a  mere  right  only,  but  such  an  estate  whereof  there 

Ch.  18.     In  this  case,  although  the  money  law  on  a  payment  according  to  the  condi- 

•was  not  paid  at  the  day  but  afterwards,  tion. 

it  was  held  that  the  mortgage  term  ought  i  Koscarrick  v.  Barton,  1  Ca.  in  Ch.  217. 

to  he  void,  just  as  it  would  have  been  at  2  Casborne  v.  Scarfe,  1  Atk.  603. 
6 


HISTORY   OF   THE   DEVELOPMENT    OF    THE   LAW.    '  [§  7. 

may  be  a  seisin ;  the  person,  therefore,  entitled  to  the  equity  of 
redemption  is  considered  as  the  owner  of  the  land,  and  a  mort- 
gage in  fee  is  considered  as  personal  assets. 

7.  "When  the  doctrine  was  first  established.  —  Courts  of 
equity  had  become  fully  established  in  their  authority  in  the  reign 
of  James  I.,  and  although  many  equitable  principles  now  recog- 
nized in  the  doctrine  of  mortgages  were  not  fully  established  till 
long  afterwards,  it  is  probable  that  at  this  time  the  subject  of 
mortorases  was  so  far  within  their  iurisdiction  as  to  enable  them 
to  relieve  the  mortgagor  from  the  forfeiture  of  his  rights  through 
failure  to  pay  according  to  the  condition,  and  to  establish  the  doc- 
trine of  the  equity  of  redemption.^ 

"  No  sooner,  however,  was  this  equitable  pi-inciple  established 
than  the  cupidity  of  creditors  induced  them  to  attempt  its  in- 
vasion, and  it  was  a  bold  but  necessary  decision  of  equity,  that 
the  debtor  could  not,  even  by  the  most  solemn  engagements 
entered  into  at  the  time  of  the  loan,  preclude  himself  from  his 
right  to  redeem  ;  for  in  every  other  instance  probably  the  rule  of 
law.  Modus  et  conventio  vincunt  legem^  is  allowed  to  prevail.  In 
truth  it  required  all  the  firmness  and  wisdom  of  the  eminent 
judges  who  successively  presided  in  the  courts  of  equity  to  pre- 
vent this  equitable  jurisdiction  being  nullified  by  the  artifice  of 
the  parties."  ^ 

"  Once  a  mortgage  always  a  mortgage,"  ^  became  one  of  the 
most  important  maxims  in  this  branch  of  the  law  ;  and  a  strict 
adherence  to  it  has  at  all  times  been  enforced.  The  parties  have 
not  been  allowed  to  provide  by  the  deed  creating  the  mortgage 
that  at  any  time,  or  upon  the  happening  of  any  event,  it  shall 
cease  to  be  a  mortgage,  and  become  an  absolute  conveyance.* 
Any  agreement  or  stipulation  cutting  off  the  right  of  redemption 
has  always  been  held  to  be  utterly  void.^  Even  a  subsequent 
release  of  this  right  by  the  mortgagor  has  always  been  looked 
upon  with  suspicion,  and  sustained  only  when  made  for  a  proper 

1  Coote  on  Mortsj-  21.  3  Newcomb  v.  Bouham,  1  Vern.  7. 

2  Coote  on  Mortg.  21  ;  and  see  Price  v.        *  Coote,  22  ;  2  Story  Eq.  Jur.  §  1019. 
Perrie,   2   Freem.  258;    Willett  v.   Win-        &  See  chapter  xxii.  "  Redemption,"  also 
nell,  1  Vern.  488;  Bowen   v.  Edwards,  1  Quartermous  v.  Kennedy,  29  Ark.  544; 
Rep.  in  Ch.  222.  Lee  v.  Evans,  8  Cal.  424. 

7 


§  8.]  THE   NATURE    OF   A   MORTGAGE. 

consideration  and   without  oppression  on  the  part  of  the  mort- 
gagee.^ 

8.  The  different  views  of  the  nature  of  a  mortgage  at  law 
and  in  equity.  —  A  mortgage  being  a  qualified  conveyance  of 
property,  whereby  the  owner  parts  with  it  so  far  as  to  make  it  a 
security  to  his  creditor,  and  his  creditor  holds  it  in  such  a  way 
that  the  owner  may,  by  equitably  fulfilhng  his  obligation,  have  his 
own  again,  the  question,  what  are  the  respective  rights  and  titles 
of  each,  is  one  that  lies  at  the  foundation  of  the  law  upon  this  sub- 
ject. Originally  an  estate  upon  condition  at  law,  equity  assumed 
jurisdiction  to  relieve  the  mortgagor  against  an  absolute  forfeiture 
upon  his  default  in  performing  the  condition  subsequent ;  and  for 
two  hundred  years  and  more  a  mortgage  has  been  one  thing  at 
law,  and  quite  another  thing  in  equity,  although  the  equitable 
view  of  the  subject  has  largely  encroached  upon  the  legal  in  courts 
of  law.'^ 

Courts  of  equity  could  not  alter  the  legal  effect  of  the  forfeiture 
which  followed  a  breach  of  the  condition,  and  did  not  attempt  to 
do  so  ;  but  they  regarded  it  as  in  the  nature  of  a  penalty  which 
ought  to  be  relieved  against.  They  recognized  the  purpose  of  the 
mortgage  as  merely  a  pledge  to  secure  a  debt,  and  declared  it  un- 
reasonable that  the  mortgagee  should,  by  the  failure  of  the  debtor 
to  meet  his  obligation  at  the  day  appointed,  be  entitled  to  keep 
as  his  own  what  was  intended  as  a  pledge.^  At  law  the  legal 
right  of  the  mortgagor  to  have  his  estate  again  was  forfeited  ;  but 
in  equity  he  was  allowed  still  to  reclaim  it  upon  payment  of  his 
debt  with  interest.  This  is  the  equity  of  redemption.  From  the 
combined  influence  of  rules  of  law  and  principles  of  equity  has 
come  the  law  of  mortgages. 

1  Pritchard  v.  Elton,  38  Conn.  434.  could  have  proceeded  in  giving  the  debtor 

2  "  The  case  of  mortgages,"  says  Chan-  relief.  The  forfeiture  was  complete  ;  the 
cellor  Kent,  "  is  one  of  the  most  splendid  mortgagee,  by  the  default  of  the  mort- 
instances  in  the  history  of  our  jurispru-  gagor,  had  become  the  absolute  owner  of 
dence  of  the  triumph  of  equitable  princi-  the  estate  ;  it  could  not  be  divested  from 
pies  over  technical  rules,  and  the  homage  him  without  a  reconveyance,  and  there 
which  those  principles  have  received  by  remained  no  remedy,  short  of  an  actual 
their  adoption  in  the  courts  of  law."  4  legislative  enactment,  without  disturbing 
Kent's  Com.  138.  "  It  is  difficult  to  con-  the  settled  landmarks  of  property."  Coote 
ceive,"  says  Mr.  Coote,  "had   the  courts  on  Mortg.  17. 

of  law  been   so  inclined   (which   it   does        3  Coote  on  Mortg.  19. 
seem  they  were),  on  what  principle  they 


HISTORY    OF    THE   DEVELOPMENT    OF   THE   LAW.  [§  9. 

The  equitable  view  of  a  mortgage,  as  merely  a  security  for  the 
pavment  of  a  debt  or  the  performance  of  some  dut}',  is  that  which 
is  at  the  present  day  so  constantlj'^  presented  both  in  theory  and 
practice,  that  it  is  difficult  to  realize  that  the  rules  of  the  common 
law  in  respect  to  it  remain  for  the  most  part  unaltered,  and  the 
transaction  is  still  a  conveyance  conditional  upon  the  non-payment 
of  the  debt  on  a  day  certain,  and  that  upon  a  breach  of  the  con- 
dition the  mortgagor  at  law  is  without  right  or  remedy.  The 
whole  legal  estate  upon  the  default  passes  irrevocably  to  the  mort- 
gagee. But  at  this  point  a  court  of  equity  allows  and  enforces 
the  right  of  redemption  ;  and  the  jurisdiction  of  courts  of  equity 
to  give  this  remedy  is  fully  recognized  in  courts  of  law. 

9.  In  courts  of  law  the  rigor  of  the  doctrine,  in  respect  to  the 
conditional  character  of  the  mortgage,  was  not  at  all  abated  in 
England  until  the  enactment  of  the  statute  of  7  Geo.  II.  ch.  20,^ 
which  permitted  a  mortgagor,  when  an  action  was  brought  on 
the  bond  or  ejectment  on  the  mortgage,  pending  the  suit,  to  pay 
to  the  mortgagee  the  mortgage  money,  interest,  and  all  costs  ex- 
pended in  any  suit  at  law  or  in  equity  ;  or  in  case  of  a  refusal  to 
accept  the  same,  to  bring  such  money  into  court  where  such  action 
was  pending,  which  moneys  so  paid  or  brought  into  court  were 
declared  to  be  a  satisfaction  and  discharge  of  the  mortgage,  and 
the  court  was  required,  by  rule  of  court,  to  compel  the  mortgagee 
to  assign,  surrender,  or  reconvey  the  mortgaged  premises  to  the 
mortgagor,  or  to  such  other  person  as  he  should  for  that  purpose 
nominate  and  appoint.  "  In  cases  strictly  within  the  terius  of 
this  statute,  the  English  courts  of  law  have  exercised  an  equitable 
jurisdiction,  to  enforce  redemption  on  payment  of  the  mortgage 
debt  after  default  in  payment,  according  to  the  condition,  by  com- 
pelling a  reconveyance.  Except  in  cases  within  this  statute,  the 
doctrine  of  the  English  courts  is  in  accordance  with  the  ancient 
common  law,  that  at  law  a  failure  to  pay  at  the  daj^  prescribed  for- 
feits the  estate  of  the  mortgagor  under  the  condition,  leaving  him 
only  an  equity  of  redemption,  which  chancery  will  lay  hold  of  and 
give  effect  to,  by  compelling  a  reconveyance  on  equitable  terms."  ^ 

1  Reenacted  in  New  Jersey,  December    Davis  v.  Teays,  3  Gratt.  (Va.)  283;  Con- 
3,   1794,  Nix.  Dig.   (4th   ed.)    608.     See,     necticut  Gen.  Sts.  (1875),  p.  471. 
also,  Virginia  Code   (1873),  c.  131,  §  21 ;         *  Per  Mr.  Ju.stice  Depue,  in  Shields  r. 

Lozear,  34  N.  J.  L.  496. 

9 


§§  10,  11.]  THE  NATURE   OF   A   MORTGAGE. 

The  statute  is  strictly  construed,  and  is  not  applicable  in  any 
case  in  which  the  mortgagor  is  himself  the  actor.  It  is  applicable 
only  in  the  cases  mentioned  in  the  preamble  and  introductory 
words  of  the  statute,  and  was  not  intended  to  supplant  bills  for 
redemption  which  afford  more  complete  remedy. ^ 

10.  "  The  respective  claims  of  mortgagor  and  mortgagee  in 
courts  of  common  law  and  of  equity  afford  one  notable  instance  of 
the  rise  of  a  trust  through  the  mere  existence  of  another  legal  re- 
lationship.2  In  a  court  of  common  law,  a  mortgage  is  an  ordinary 
conveyance  following  upon  a  contract  for  a  sale  or  for  a  lease. 
The  mortgagee  takes  the  place  of  the  mortgagor  as  owner  of  the 
land,  and  the  mortgagor  that  of  tlife  mortgagee  as  owner  of  the 
money  borrowed,  the  subsequent  repayment  of  the  money  and  re- 
conveyance of  the  land  being  regulated  by  what  is  in  fact  nothing 
else  than  a  subsidiary  contract.  In  a  court  of  equity,  the  mort- 
gagee is  recognized  as  having  nothing  more  than  the  sort  of  secu- 
rity for  his  debt  which  is  provided  by  a  conditional  power  of  sale, 
and,  whether  he  be  in  possession  of  the  land  or  not,  is  treated  as 
the  mere  trustee  of  the  land  for  the  benefit  of  the  mortgagor  and 
his  heir.  The  money  lent  descends,  on  the  death  of  either  of  the 
parties,  as  a  debt  due  from  the  one,  or  his  executors,  to  the  other, 
or  his  executors." 

11.  The  modern  common  law  doctrine  of  mortgages.  —  At 
common  law  the  legal  estate  vested  in  the  mortgagee  and  was  for- 
feited upon  default.  Equity  estabhshed  the  right  of  redemption 
after  default.  From  these  principles  is  derived  the  doctrine  of 
mortgages  as  it  exists  at  the  present  day,  in  England  and  in  a 
large  part  of  our  own  country.  The  legal  title  passes  to  the  mort- 
gagee by  the  deed,  but  the  mortgagor  has  after  default  a  right  to 
redeem,  which  he  may  enforce  in  equity.  A  mortgage  is  one  thing 
at  law  and  another  in  equity  ;  in  the  one  court  it  is  an  estate  and 
in  the  other  a  security  only.  The  mortgagee  has  certain  legal 
remedies  and  the  mortgagor  certain  equitable  remedies.  These 
have  been  so  adjusted  that  a  perfectly  defined  system  is  the  result. 
The  jurisdiction  of  courts  of  law  and  of  courts  of  equity  upon  this 

1  Good-title  V.  No-title,  11  Moore,  491  ;        ^  Mr.  Sheldon  Ames,  in  his  Science  of 
Doe  V.  Clifton,  4  Ad.  &  E.  809  j  Shields     Jurisprudence,  p.  269. 
r.  Lozear,  34  N.  J.  L.  496. 
10 


HISTORY    OF   THE    DEVELOPMENT    OF   THE   LAW.  [§  11. 

subject  are  mutually  recognized.  Courts  of  law  have  so  far 
adopted  the  principles  of  equity  that  they  allow  the  legal  title  of 
the  holder  of  the  mortgage  to  be  used  only  for  the  purpose  of  se- 
curing his  equitable  rights  under  it.  The  mortgagee,  for  the  pur- 
pose of  protecting  and  enforcing  his  lien  against  the  mortgagor, 
is  allowed  the  remedies  of  an  owner ;  he  may  enter  into  and  hold 
possession,  and  take  the  rents  and  profits  in  payment  of  his  mort- 
gage debt,  and  may  have  his  action  of  ejectment  to  recover  such 
possession,  and  hence  is  sometimes  called  the  owner.^  The  mort- 
gagee has  something  more  than  a  mere  lien  ;  he  has  a  transfer  of 
the  property  itself  and  a  legal  estate  in  it,  giving  him  a  standing 
at  law  as  well  as  in  equity.^  His  interest  can  be  called  a  lien 
only  in  a  loose  and  general  sense,  in  contradistinction  to  an  abso- 
lute and  indefeasible  estate.^ 

In  equity  a  mortgage  of  land  is  regarded  as  a  mere  security  for 
a  debt  or  obligation,  which  is  considered  as  the  principal  thing, 
and  the  mortgage  only  as  the  accessory.^  The  legal  title  vests  in 
the  mortgagee  merely  for  the  protection  of  his  interest,  and  in 
order  to  give  him  the  full  benefit  of  the  security  ;  but  for  other 
purposes  the  mortgage  is  a  mere  security  for  the  debt.^ 

A  recital  in  a  mortgage  that  the  note  secured  is  collateral  to  the 
mortgage  does  not  change  the  character  of  the  instruments  or 
their  relation  to  each  other  under  the  general  rule  as  to  principal 
and  incident ;  and  the  fact  that  the  note  is  indorsed  by  a  third 
person  makes  no  difference.^ 

As  to  all  persons  except  the  mortgagee  and  those  claiming 
under  him,  it  is  everywhere  the  established  modern  doctrine  that 
a  mortgagor  in  possession  is  at  law,  both  before  and  after  breach 
of  the  condition,  the  legal  owner.  This  is  the  rule  not  merely  in 
courts  of  equity  but  in  courts  of  law  as  well.  Lord  Mansfield, 
by  his  decisions  upon  the  subject  of  mortgages,  did  much  to 
naturalize  these  equitable  doctrines  in  courts  of  law.  In  a  case 
before  the  King's  Bench,  he  said  :  "  It  is  an  affront  to  common 
sense  to  say  the  mortgagor  is  not  the  real  owner  ;  "  and  therefore 
he  held  that  a  mortgagor  in  possession  gains  a  settlement,  because 

1  Clark  V.  Eeyburn,  1  Kans.  281.  *  Timms  r.  Shannon,  19  Md.  296. 

2  Barnard   v.  Eaton,  2   Cush.    (Mass.)         ^  Glass  v.  Ellison,  9  N.  H.  69. 
294,  304.  ^  Catlin  v.  Heuton,  9  Wis.  476. 

3  Conard  v.  Atlantic,  &c.  1  Pet.  386,441  ; 
Evans  v.  Merrilien,  8  G.  &  J.  (Md.)  39,  47- 

11 


§  12.]  THE  NATURE   OF  A   MORTGAGE. 

the  mortgagee,  notwithstanding  the  form,  has  but  a  chattel,  and 
the  mortgage  is  only  a  security.^ 

Again,  in  construing  a  will,  he  held  that  whatever  words  were 
sufficient  to  carry  the  money  due  on  a  mortgage  would  carry  the 
interest  in  the  land  along  with  it,  saying,^  "  that  a  mortgage  is 
a  charge  upon  the  land  ;  and  whatever  would  give  the  money, 
will  carry  the  estate  in  the  land  along  with  it,  to  every  purpose. 
The  estate  in  the  land  is  the  same  thing  as  the  money  due  upon 
it.  It  will  be  liable  to  debts  ;  it  will  go  to  executors  ;  it  will 
pass  by  a  will  not  made  and  executed  with  the  solemnities  re- 
quired by  the  statute  of  frauds.  The  assignment  of  the  debt,  or 
forgiving  it,  will  draw  the  iand  after  it,  as  a  consequence  ;  nay,  it 
would  do  it,  though  the  debt  were  forgiven  only  by  parol,  for  the 
right  to  the  land  would  follow,  notwithstanding  the  statute  of 
frauds." 

12.  Lord  Mansfield's  views.  —  It  is  true  that  some  opinions 
expressed  by  Lord  Mansfield  would  seem  to  lead  to  the  con- 
clusion that  he  regarded  a  mortgage  even  at  law  as  merely  a  secu- 
rity for  a  debt,  and  not  a  legal  conveyance.^  "  Lord  Mansfield,  in- 
deed," says  Mr.  Coventry,"^  "  appears  to  have  entertained  mis- 
taken conceptions  on  this  and  other  subjects  connected  with  the 
law  of  mortgages.  His  chief  error  seems  to  have  been  in  mixing 
rules  of  equity  with  rules  of  law,  and  applying  the  former  in  cases 
where  the  latter  only  ought  to  have  prevailed." 

An  unqualified  adoption  of  some  of  the  expressions"  of  Lord 
Mansfield  is  inconsistent  with  a  legal  view  of  the  nature  of 
mortgages  ;  it  would  lead  to  the  conclusion  that  a  mortgage  is 

1  The  King  v.  St.  Michael's,  Doug,  distinctiou  between  them  which  subsists 
630.  -with  us  is  not  known  ;  and  there  are  many 

2  Weston  V.  Mowlin,  2  Burr.  969,  978,  things  in  his  decisions  which  show  that 
decided  in  17G0.  his  mind  had  received  a  tinge  on  that  sub- 

**  See,    also,    Ren    v.  Bulkeley,   Doug,  ject  not  quite  consistent  with  the  coastitu- 

292  ;  Eaton  v.  Jaques,  2  Doug.  455.  tion  of  England  and  Ireland  in  the  admin- 

*  In  note  to  Powell  on  Mortg.  267,  n.  istration  of  justice.    It  is  a  most  important 

Lord  Redesdale,  in  Shannon  v.  Bradstreet,  part  of  that  constitution  that  the  jurisdic- 

1    Sch.  &  Lef.  52,   65,  speaking  of  Lord  tions  of  the  courts  of  law  and  equity  should 

Mansfield's  tendency  to  give  courts  of  law  be  kept  perfectly  distinct ;  notliing   con- 

the  power  of  courtsof  equity,  said  :  "Lord  tributes  more  to  the  due  administration  of 

Mansfield  had  on  his  mind  prejudices  de-  justice;  and,  though   they  act  in   a  great 

rived  from  his  familiarity  with  the  Scotch  degree  by  the  same  rules,  yet  they  act  in  a 

law,  where  law  and  equity  are  adminis-  different  manner,  and  their  modes  of  afford- 

tered  in  the  same  courts,  and  where  the  iug  relief  are  different." 

12 


HISTORY   OF   THE   DEVELOPMENT   OF   THE   LAW.  [§  13. 

mei'ely  a  security  and  not  an  estate  in  the  land.  The  English 
courts  by  universal  consent  have  refused  to  adopt  this  conclusion  ; 
but  in  this  country  his  lead  has  been  followed  in  nearly  half  of 
the  states  ;  and  the  adoption  of  equitable  principles  by  courts 
of  law  has  been  followed  by  legislative  enactments  taking  from 
the  mortgagee  the  right  of  possession,  so  that  in  these  states  it  is 
the  established  doctrine  that  a  mortgage  confers  no  title  or  estate 
upon  the  mortgagee,  but  only  a  security.  The  legal  character  of 
the  mortgage  has  wholly  given  place  to  the  equitable. 

13.  The  courts  of  New  York  at  an  early  day  took  the  lead  in 
this  direction.  The  first  important  step  was  to  deny  the  legal 
character  of  the  mortgagee's  title  prior  to  a  breach  of  the  condi- 
tion and  a  taking  of  possession  by  the  mortgagee  in  consequence. ^ 
Before  default  he  was  not  allowed  to  take  possession  ;  on  the  con- 
trary, the  mortgagor  in  possession  could  maintain  trespass  against 
him. 2  But  after  a  breach  of  the  condition  and  possession  taken 
by  the  mortgagee,  he  was  regarded  as  invested  with  the  legal  es- 
tate.^ The  right  to  take  possession  even  upon  a  breach  of  the 
condition  was  finally  taken  away  by  the  Revised  Statutes.*  This 
enactment  was  regarded  as  completing  the  change  in  the  nature 
of  the  mortgages  and  removing  from  them  tlie  last  remaining  com- 
mon law  attribute. 

And  yet  an  examination  of  the  cases  in  New  York  in  which 
questions  in  regard  to  the  nature  of  mortgages  are  involved  and 
discussed  shows  considerable  conflict  and  contradiction  of  views. 
This  is  especially  the  case  with  the  decisions  prior  to  the  statute 
taking  from  the  mortgagee  the  right  to  recover  possession  of  the 
mortgaged  property ;  and  even  since  that  statute,  although  in 
theory  the  legal  title  remains  in  the  mortgagor  until  foreclosure, 
it  has  been  frequently  admitted  by  judges  and  legal  writers,  that 
for  some  purposes  and  in  some  cases  his  interest  must  be  treated 
and  regarded  as  a  title  for  the  purpose  of  protecting  his  equitable 
rights.^  When  the  mortgagor's  interest  is  regarded  as  the  legal 
estate  in  the  land,  it  is  undoubtedly  a  misnomer  to  call  it  an  equity 

1  Phyfe  V.  Riley,  15  Wend.  (N.  Y.)  3  Bolton  v.  Brewster,  32  Barb.  (X.  Y.) 
248.  389. 

2  Bryan  v.  Butts,  27  Barb.  (N.  Y.)  503 ;  *  2  R.  S.  312,  §  57,  enacted  1828. 
Runyan  t;.  Mersereau,  11  Johns.  (N.  Y'.)  ^  Thomas  on  Mortg.    16;    Ilubbell  v. 
534.  Moulson,  53  N.  Y.  225  ;  White  v.  Ritten- 

myer,  41  Iowa,  268,  271. 

13 


§  14.]  THE  NATURE   OF   A   MORTGAGE. 

of  redemption  either  before  or  after  default.^  But  althougli  the 
term  has  ceased  to  be  an  accurate  description  of  his  right  in  the 
land,  it  has  an  established  place  among  legal  terms,  and  doubtless 
will  continue  to  be  used  to  describe  his  interest,  notwithstanding 
the  change  made  in  some  states  as  to  his  actual  rights. 

14.  Incongruities  in  both  theories.  —  Many  attempts  have 
been  made  to  state  a  perfectly  harmonious  and  consistent  system 
of  law  in  regard  to  mortgages  ;  but  complete  success  has  never 
attended  them.  On  the  one  hand,  the  modern  common  law  view 
of  mortgages,  by  which  the  mortgagee  is  regarded  as  the  owner  of 
the  legal  estate  for  the  purpose  of  protecting  and  enforcing  his 
rights,  and  the  mortgagor  is  regarded  as  the  legal  owner  as  against 
every  other  person,  is  objected  to  as  presenting  the  incongruous 
position  that  one  person  may  be  the  legal  owner  for  one  purpose, 
and  at  the  same  time  another  person  may  be  the  legal  owner  for 
another  purpose  ;  that  in  one  court  the  mortgagee  is  the  legal 
owner,  and  in  another  the  mortgagor  is  the  legal  owner  ;  that  after 
the  legal  title  has  passed  to  the  mortgagee  by  a  legal  conveyance, 
it  may  be  defeated  by  the  act  of  the  mortgagor  from  whom  the 
title  has  passed,  merely  by  payment  before  forfeiture.^ 

On  the  other  hand,*  it  was  thought  by  regarding  a  mortgage 
both  at  law  and  in  equity  as  a  mere  security  to  make  a  more  har- 
monious and  consistent  doctrine  regarding  this  instrument.  It  is 
admitted  that  this  doctrine  is  anomalous.  That  a  legal  convey- 
ance does  not  pass  a  legal  title  is  not  in  accordance  with  legal 
principles.^  Moreover,  it  has  been  found  that  in  order  to  secure 
the  equitable  rights  of  parties,  the  mortgagee's  interest  must  in 
some  cases  be  treated  and  regarded  as  a  title.  This  is  admitted 
by  Mr.  Justice  Andrews  in  a  recent  case  before  the  Court  of  Ap- 
peals of  New  York  ;  ^  and  he  mentions  instances  in  the  decisions  of 
that  state  where  the  mortgagee's  interest  has  been  so  treated  and 
regarded  notwithstanding  the  doctrine  that  he  has  a  lien  only.  It 
is  claimed,  however,  that  no  title  in  a  strict  sense  vests  in  him  ; 
but  only  that  his  interest  for  some  purposes  is  in  the  nature  of  a 
legal  title.     He  is  treated  as  if  he  had  a  legal  title,  by  being  pro- 

1  Per  Earl,  C,  in  Trimm  v.  Marsh,  5-t  3  White  v.  Rittenmyer,  30  Iowa,  268, 

N.  Y.  599  ;  Cliick  v.  Willetts,  2  Kans.  384,  271. 

per  Crozier,  C.  J,  *  Hubbell  v.  Moulson,  53  N.  Y.  225. 

^  White  V.  Ilitteninvcr,  30  Iowa,  268,  271- 

14 


HISTORY   OF   THE   DEVELOPMENT   OF   THE   LAW.  [§  15. 

tected  in  his  possession,  when  he  has  once  acquired  it,  until  the 
debt  is  fully  paid.^  The  only  remedy  for  recovering  possession 
from  him  in  such  case  is  by  a  bill  in  equity  to  redeem, ^  as  is  the 
case  where  the  mortgagee  is  regarded  as  holding  the  legal  estate. 

In  other  ways  also  the  mortgagee  is  treated  as  holding  an  estate. 
He  is  deemed  a  purchaser  to  tlie  extent  of  his  interest,  and  is  pro- 
tected in  his  rights  in  the  same  way  and  to  the  same  extent  as  a 
purchaser  of  an  absolute  estate.^  As  an  estate  in  him,  his  interest 
is  protected  against  a  claim  of  dower  by  the  wife  of  the  mortgagor 
when  she  has  released  this  right  in  the  mortgage,  although  she 
may  be  entitled  to  it  in  the  equity  of  redemption  after  this  has 
been  released  to  him,  or  otherwise  acquired  by  him.* 

And  so  also  a  title  acquired  by  the  mortgagor  after  making  the 
mortgage  enures,  by  force  of  the  covenant  of  warranty  contained 
in  it,  to  the  benefit  of  the  mortgagee. 

15.  The  practical  distinction  between  these  two  views.  — 
What,  then,  are  the  practical  distinctions  between  a  mortgage  I'e- 
garded  as  a  legal  estate  in  the  mortgagee,  and  a  mortgage  regarded 
as  a  mere  personal  lien  ?  In  what  respect  are  the  rights  of  both 
the  mortgagor  and  the  mortgagee,  where  the  one  view  prevails,  the 
same  as  they  are  where  the  other  prevails ;  and  in  what  respects 
are  their  rights  different  under  the  one  doctrine  from  what  they 
are  under  the  other  ? 

In  the  first  place,  wherein  are  the  two  doctrines  in  harmony  as 
regards  the  rights  and  interests  of  the  mortgagor  ?  Everywhere 
the  mortgagor's  interest  in  the  land  may  be  sold  upon  execution  ; 
his  widow  is  entitled  to  dower  in  it ;  it  passes  as  real  estate  by 
devise  ;  it  descends  at  his  death  as  real  estate  to  his  heirs  ;  it 
gives  him  a  right  of  settlement  as  an  owner  of  real  estate  ;  he  is 
a  freeholder ;  he  may  maintain  a  real  action  for  the  land  against 
a  stranger,  and  the  mortgage  cannot  be  set  up  as  a  defence. 

In  the  second  place,  wherein  are  the  rights  and  interests  of  the 
mortgagee  the  same  whether  regarded  under  the  one  theory  or  the 
other  ?     Everywhere  it  is  held  that  he  has  no  such  estate  as  can 

1  Mickles  v.  Townscnd,  18  N.  Y.  575,  (N.  Y.)  Ch.  417;  S.  C.  2  Cowen,  246 ; 
584.  Ledyard  v.  Butler,  9  Paige  (N.  Y.),  132, 

2  Hubbell  V.  Moulson,  53  N.  Y.  225.  137. 

3  See  Frisbie  v.  Thayer,  25  Wend.  (N.  *  Van  Dyne  v.  Thayre,  19  Wend.  (N. 
Y.)  396,  399;  James  v.  Johnson,  6  Johns.  Y.)  162. 

15 


§  16.]  THE   NATURE   OF   A   MORTGAGE. 

be  sold  on  execution ;  his  widow  has  no  right  of  dower  in  it ;  upon 
his  death  the  mortgage  passes  to  his  personal  representatives  as 
personal  estate  ;  and  it  passes  by  his  will  as  personal  property. 

The  practical  distinctions  between  these  views  are  these  :  Under 
the  common  law  view,  as  we  may  term  the  former,  the  mortgagee 
is  entitled  to  immediate  possession  of  the  mortgaged  property  as 
an  incident  to  the  title  when  not  restrained  by  the  terms  of  the 
mortgage  ;  and  upon  default  he  is  always  entitled  to  the  possession 
and  may  recover  it  by  action  at  law  ;  whereas,  under  the  equi- 
table view,  the  mortgagor  is  entitled  to  possession  until  foreclosure, 
unless  perhaps  he  may  by  express  contract  give  this  right  to  the 
mortgagee.  This  is  the  great  difference  resulting  from  these  dif- 
ferent theories.  In  large  degree  resulting  from  these  different 
ways  of  viewing  the  interest  of  the  parties  follow  the  further  dis- 
tinctions :  that  while  generally,  under  the  former  view  of  the  law, 
a  tender  or  payment  to  defeat  the  mortgagee's  title  must  be  made 
at  or  before  the  law  day,  as  the  day  of  payment  is  termed,  under 
the  latter  view  a  pa^anent  at  any  time,  though  after  default,  re- 
vests the  interest  in  the  mortgagor;  and  while  under  the  former 
view  it  is  generally  held  that  a  transfer  of  the  mortgage  interest 
can  only  be  made  by  an  assignment  or  deed  duly  executed  as  a 
conveyance,  under  the  latter  view  it  is  held  that  a  mere  transfer 
of  the  mortgage  note  by  indorsement  or  delivery  passes  the  inter- 
est in  the  land  as  an  incident  of  the  debt.  These  two  distinctions 
do  not,  however,  necessarily  and  inevitably  attend  the  different 
theories. 

16.  How  then  may  a  mortgage  at  the  present  day  be  de- 
fined?—  Baron  Parke,  speaking  of  the  mortgagor,  said  :  "He 
can  be  described  only  by  saying  he  is  a  mortgagor."  ^  In  the 
same  way  it  may  be  said  that  the  most  accurate  and  comprehen- 
sive definition  of  a  mortgage  is  that  it  is  a  mortgage.  A  defini- 
tion broad  enough  to  cover  any  view  of  the  transaction,  and  any 
form  of  it,  can  only  be  that  it  is  a  conveyance  of  land  as  security. 
This  embraces  the  two  things  essential  to  constitute  a  mortgage. 
If  more  be  attempted,  it  results  in  a  description  of  some  one  of 
the  many  forms  which  a  mortgage  may  take.  In  a  note  are 
given  definitions  and  descriptions  of  mortgages  by  several  emi- 
nent authors  and  judges.  But  to  define  the  different  kinds  of 
1  Litchfield  v.  Ready,  20  L.  J.  Ex.  51. 

16 


HISTORY    OF   THE   DEVELOPMENT    OF   THE   LAW. 


[§16. 


mortgages,  and  the  many  different  rights  under  them,  is  the  ser- 
vice attempted  by  a  treatise  on  the  subject.^ 


1  "  A  mortgage  at  common  law  may  be 
defined  to  be  an  estate  created  by  a  con- 
veyance, absolute  in  its  form,  but  intended 
to  secure  the  performance  of  some  act, 
such  as  the  payment  of  money  and  the 
like,  by  the  grantor  or  some  other  person, 
and  to  become  void  if  the  act  is  performed 
agreeably  to  the  terms  prescribed  at  the 
time  of  making  such  conveyance.  It  is, 
therefore,  an  estate  defeasible  by  the  per- 
formance of  a  condition  subsequent." 
Mr.  Washburn's  Real  Prop.  c.  16,  §  1. 

"  The  mortgage  proper,  mortumn  vadium, 
is  an  assurance  to  the  creditor  of  the  whole 
or  part  of  the  debtor's  general  property, 
in  real  or  personal  estate,  conditional  upon 
the  non-payment,  and  redeemable  upon 
payment,  of  a  debt  at  a  fixed  time,  and 
upon  breach  of  the  condition  the  assurance 
becomes  absolute,  but  remains  subject  to 
an  equitable  right  of  redemption  until  the 
expiration  of  a  certain  period  ;  unless  the 
right  be  sooner  foreclosed  by  judicial 
process  at  the  suit  of  the  creditor,  or  be 
destroyed  by  sale  under  judicial  process  or 
under  a  power  incident  to  the  security." 
Fisher  on  Mortg.  (3d  ed.)  p.  2. 

"A  mortgage  may  be  described  to  be  a 
conveyance  of  lands  by  a  debtor  to  his 
creditor,  as  a  pledge  and  security  for  the 
repayment  of  a  sum  of  money  borrowed, 
with  a  proviso  that  such  conveyance  shall 
be  void  on  payment  of  the  money  and  in- 
terest on  a  certain  day ;  and  in  all  mort- 
gages, although  the  money  be  not  paid  at 
the  time  appointed,  by  which  the  convey- 
ance of  the  lands  becomes  absolute  at  law, 
yet  the  mortgagor  has  still  an  equity  of  re- 
demption, that  is,  a  right  in  eipiity  on  pay- 
ment of  the  principal,  interest,  and  costs, 
within  a  reasonable  time,  to  call  for  a  re- 
conveyance of  the  lands."  Mr.  Coventry 
in  Powell  on  Mortg.  p.  4.  Almost  precise- 
ly the  same  words  are  used  to  describe  a 
mortgage  by  Mr.  Cruise.  1  Dig.  of  Law 
of  Real  Prop.  (Am.cd.)  tit.  xv.  ch.  i.  §  11. 

"  A  mortgage  may  be  defined  to  be  a 
debt  by  specialty,  secured  by  a  pledge  of 

VOL.  I.  2 


lands,  of  which  the  legal  ownership  is 
vested  in  the  creditor,  but  of  which  in 
equity  the  debtor  and  those  claiming  un- 
der him  remain  the  actual  owners,  until 
debarred  by  judicial  sentence  or  their  own 
laches."     Coote  on  Mortg.  p.  1. 

"  A  mortgage  in  fee  is  an  estate  upon 
condition  defeasible  by  the  performance 
of  the  condition  according  to  its  legal  ef- 
fect." Erskine  v.  Townsend,  2  Mass.  495  ; 
Carter  v.  Taylor,  3  Head  (Tenn.),  30; 
Briggs  V.  Fish,  2  D.  Chip.  (Vt.)  100. 

"  A  mortgage  is  a  deed  whereby  one 
grants  to  another  lands  upon  condition 
that  if  the  mortgagor  shall  pay  a  certain 
sum  of  money,  or  do  some  other  act  there- 
in specified  at  a  certain  day,  the  grant 
shall  be  void."  Montgomery  v.  Bruere, 
1  Southard  (N.  J.),  268. 

"  At  common  law  a  mortgage  is  defined 
to  be  a  deed  conveying  lands  conditioned 
to  be  void  upon  the  payment  of  a  sura  of 
money,  or  the  doing  of  some  other  act." 
Lund  V.  Lund,  1  N.  H.  41. 

"  A  mortgage  is  a  conditional  convey- 
ance of  land,  designed  as  a  security  for 
the  payment  of  money,  the  fulfilment  of 
some  contract,  or  the  performance  of  some 
act,  and  to  be  void  upon  such  payment, 
fulfilment,  or  performance."  Mitchell  v. 
Burnham,  44  Maine,  299. 

"  A  mortgage  is  defined  to  be  a  convey- 
ance of  an  estate,  by  way  of  pledge,  to 
secure  a  debt,  or  the  performance  of  some 
act,  such  as  the  payment  of  money,  or  the 
furnishing  of  an  indemnity,  and  to  become 
void  on  payment  or  performance  agreeably 
to  the  prescribed  condition."  Wright  v. 
Cooper,  37  Vt.  179. 

In  New  Hampshire  it  is  declared  by 
statute  that  "  every  conveyance  of  lands, 
made  for  the  purpose  of  securing  the  pay- 
ment of  money,  or  the  performance  of  any 
other  thing  in  the  condition  thereof  stated, 
is  a  mortgage."     Gen.  Stat.  1867,  c.  122, 

§1- 

By  the  Code  of  California,  a  mortgage 
is   defined  to  be  "  a  contract,   by  which 

17 


§§  17,  18.]  THE   NATURE   OF   A   MORTGAGE 


2.    The  Nature  of  a  Mortgage  in  the  different  States. 

17.  Generally.  —  As  already  stated,  the  conflicting  views  of 
the  nature  of  mortgages  entertained  at  law  and  in  equity  have 
resulted  in  the  just  and  harmonious  system,  which  is  now  admin- 
istered in  the  courts  of  England  and  in  most  of  the  courts  of  the 
older  States  of  America.  In  these  courts  a  mortgage  is  regarded 
as  a  conveyance  in  fee,  and  this  construction  is  thought  best 
adapted  to  give  to  the  creditor  full  protection  in  preserving  and 
enfoi-cing  his  security,  while  at  the  same  time  the  debtor  is  se- 
cured in  his  right  to  redeem.  In  other  states,  however,  this  sys- 
tem has  been  changed,  for  the  most  part  by  statute,  so  that  a 
mortgage  is  regarded  as  merely  a  pledge,  and  the  rights  and  reme- 
dies under  it  are  wholly  equitable,  so  that  a  second  system  has 
grown  out  of  the  first.  There  are  also  some  few  modifications  of 
each. 

In  examining  the  various  questions  that  arise  under  the  law 
of  mortgages,  it  is  often  important  to  distinguish  between  the 
opinions  of  courts  acting  under  these  different  views  of  the  nature 
of  a  mortgage.  On  several  topics  frequent  reference  will  be  made 
to  the  distinguishing  features  of  the  two  systems.  On  these 
topics  authorities  from  several  states  having  the  same  system  will 
be  harmonious,  but  will  differ  from  those  from  several  states  in 
which  the  other  system  prevails.  It  was  therefore  thought  to  be 
best  to  give  briefly,  under  the  name  of  each  state,  the  law  there 
in  force  upon  this  fundamental  matter  of  the  nature  of  the  con- 
veyance in  mortgage,  as  announced  by  the  courts,  or  enacted  by 
statute. 

18.  In  Alabama  a  mortgage  passes  to  the  mortgagee,  as  be- 
tween him  and  the  mortgagor,  the  estate  in  the  land.  It  confers 
something  more  than  a  mere  security  for  a  debt :  it  confers  a  title 
under  wdiich  the  mortgagee  may  take  immediate  possession,  unless 
it  appears  by  express  stipulation,  or  necessary  implication,  that 

specific  property  is  hypothecated   for  the  In  Florida  it  is  provided  that  all  con- 
performance  of  an  act,  without  the  neces-  veyances  securing  the  payment  of  money 
sity  of   a  change  of  possession."      Civil  shall  be  deemed  mortgages.     Bush's  Dig. 
Code,  1872,  §  2920  ;  adopted  also  by  Civil  1872,  p.  605. 
Code  of  Dakota,  1871,  §  1608. 
18 


IN   THE   DIFFEPwENT    STATES.  [§§  19,  20. 

the  mortgagor  may  remain  in  possession  nntil  default.^  After 
the  law  day,  the  legal  estate  is  absolutely  vested  in  the  mortgagee, 
and  the  mortgagor  has  nothing  left  but  an  equity  of  redemption.^ 
Nothing  but  payment,  or  a  release  of  the  mortgage,  or  a  reconvey- 
ance, can  operate  in  a  court  of  law,  to  revest  the  title  in  the  mort- 
gagor ;  and  it  is  questioned  whether  payment  alone  after  the  law 
day  is  sufficient.^  But  as  against  all  persons  but  the  mortgagee 
and  his  assigns,  the  mortgagor  is  regarded  as  the  proprietor  and  is 
entitled  to  the  possession.^ 

19.  In  Arkansas  the  mortgagee  was,  in  an  early  case,  con- 
sidered as  having  the  legal  estate  after  condition  broken,  follow- 
ing in  this  respect  some  of  the  earlier  cases  in  New  York.^  In  a 
later  case,  it  is  said  that  the  legal  title  passes,  at  law,  directly  to 
the  mortgagee,  subject  to  be  defeated  by  the  performance  of  the 
conditions  of  the  mortgage ;  and  that  the  right  of  possession  fol- 
lows the  legal  title  unless  it  be  expressly  provided  in  the  deed,  or 
clearly  appears  to  be  the  intention  of  the  parties,  that  the  mort- 
gagee shall  remain  in  possession  until  default.^  Whenever  he  is 
entitled  to  possession,  he  may  acquire  it  by  an  action  of  eject- 
ment. He  may  upon  default  pursue  any  or  all  of  his  remedies  : 
may  bring  actions  for  the  debt,  for  possession,  and  to  foreclose  the 
equity  of  redemption  and  sell  the  land.' 

20.  In  California  a  mortgage  does  not  convey  the  legal  title 
for  any  purpose,  either  before  or  after  condition  broken.  It  is  a 
mere  security  for  the  payment  of  money,  and  passes  no  estate  in 
the  land.     This  is  the  declaration  of  the  Code.^ 

"  It  was  from  a  consideration  of  the  character  of  the  instru- 

1  Duval  V.  McLoskey,  1  Ala.  708  ;  Knox  ^  Kannady  v.  McCarron,  18  Ark.  166. 

u.  Easton,  38  Ala.  345.  ^  Fitzgerald  v.  Beehc,  supra ;  Gilchrist 

^  Paullingv.  Barron,  32  Ala.  9;  Barker  v.  Patterson,  18   Ark.  575;    Reynolds  i'. 

V.  Bell,  37  Ala.  354.  Canal  &  Banking  Co.  of  N.  0.  30  Ark. 

8  Powell  V.  Williams,  14  Ala.  476  ;  Bar-  520. 

ker  V.  Bell,  supra.  ^  Civil  Code,  1872,  §  2927  ;  McMillan  v. 

*  Knox  V.  Easton,  supra;  Mansony  r.  Richards,  9  Cal.  365,  where  Mr.  Justice 

U.  S.  Bank,  4  Ala.  735.  Field  examines  the  subject  at  great  length ; 

6  Fitzgerald  v.   Beebe,  2   Eng.   (Ark.)  Dutton  f.  Warschauer,  21  Cal.  609  ;  Mack 

311;  Phyfe  v.  Riley,  15  Wend.  (N.  Y.)  v.  Wetzlar,   39   Cal.   247;    Goodenow  v. 

248;  Reynolds  r.  Canal  &  Banking  Co.  of  Ewer,  16  Cal.  467;   Kidd  v.  Teeple,  22 

N.  0.  30  Ark.  520.  Cal.  255. 

19 


§  20.]  THE   NATURE   OF   A   MORTGAGE 

ment,"  says  Chief  Justice  Field, ^  "  as  settled  by  these  decisions 
and  the  modern  cases  generally,  that  we  were  induced  to  adopt 
the  equitable  doctrine  as  the  true  doctrine ;  and  it  was  from  a 
consideration  of  the  provisions  of  the  statute  which  led  us  to  go 
beyond  those  cases,  and  carry  the  doctrine  to  its  legitimate  and 
logical  result,  and  regard  the  mortgage  as  a  security  under  all  cir- 
cumstances, both  at  law  and  in  equity.  Mortgages,  therefore, 
executed  before  the  statute,  can  only  be  treated  as  conveyances 
when  that  character  is  essential  to  protect  the  just  rights  of  the 
mortgagee  ;  mortgages  since  the  statute  are  regarded  at  all  times 
as  mere  securities,  creating  only  a  lien  or  incumbrance,  and  not 
passing  any  estate  in  the  premises."  ^ 

It  is  fully  settled  that  a  mortgage  does  not  convey  the  title,  but 
only  creates  a  lien  on  the  property,  the  title  remaining  in  the 
mortgagor  subject  to  the  lien.^  It  is  provided  by  statute,  that  the 
mortgagee  shall  not  be  entitled  to  possession  unless  authorized  by 
the  express  terms  of  the  mortgage.*  Entry  and  possession  by  the 
mortgagee  do  not  affect  the  nature  of  his  interest.  They  can 
neither  abridge  nor  enlarge  that  interest,  nor  convert  what  was 
previously  a  security  into  a  seisin  of  the  freehold.^  But  if  the 
mortgagee,  after  condition  broken,  take  possession  by  consent  of 
the  mortgagor,  it  is  presumed,  in  the  absence  of  clear  proof  to  the 
contrary,  that  he  is  to  receive  the  rents  and  profits,  and  apply 
them  to  the  debt  secured,  and  that  he  is  to  hold  possession  until 
the  debt  is  paid.^  This  possessory  right  may  be  transferred  by 
express  terms,  though  it  does  not  pass  by  an  ordinary  assignment.'^ 
Even  an  absolute  deed  without  any  defeasance,  if  in  fact  made  to 
secure  a  debt,  so  that  in  equity  it  is  a  mortgage,  passes  no  title 
to  the  grantee.^     Of  course,  under  this  view  of  the  nature  of  a 

1  Button  V.  Warschauer,  21  Cal.  609,  16  Cal.  559;  Fogarty  v.  Sawyer,  17  Cal. 
623.  589;    Bludworth  v.  Lake,  33    Cal.   255; 

2  Stat.  1851,  §  260  declared  a  mortgage  Carpentier  v.  Brenham,  40  Cal.  221 ;  Haf- 
shall  not  be  deemed  a  conveyance,  what-  fley  v.  Maier,  13  Cal.  13. 

ever  its  terms,  so  as  to  enable  the  owner  *  Civil  Code,  §  2927.      The  owner  may 

of  the    mortgage   to   recover  possession,  make  an   independent    contract    for    the 

without  a  foreclosure  and  sale.     Prior  to  mortgagee's  possession.    Fogarty  v.  Saw- 

this  statute  a  mortgage  was  not  a  condi-  yer,  17  Cal.  589. 

tional  estate  to  become  absolute  on  a  breach  &  Nagle  v.  Macy,  9  Cal.  426. 

of  condition,  as  at  common  law.     Skinner  ^  -p^'ink  v.  Le  Koy,  49  Cal.  314  ;  Dut- 

V.  Buck.  29  Cal.  253.  ton  v.  Warschauer,  21  Cal.  609. 

8  Mack  V.  Wetzlar,  39   Cal.  247  ;  Harp  ^  Button  v.  Warschauer,  aupra. 

V.   Calahan,    46    Cal.    222  ;    Jackson    v.  ^  Jackson  i;.  Lodge,  36  Cal.  28, 
Lodge,  36  Cal.  28;  Boggs  v.   Hargrave, 
20 


IN   THE    DIFFERENT   STATES.  [§§  21,  22. 

mortgage,  payment  after  default  operates  to  clischarge   the  lien 
equally  with  payment  at  the  maturity  of  the  debt.^ 

21.  So  in  Colorado  a  mortgage  is  considered  a  security  only, 
and  does  not  before  foreclosure  confer  any  right  of  entry  on  the 
mortgagee.^  But  it  seems  that  a  mortgagee  who  has  acquired 
possession  may  retain  it ;  and  that  he  may  recover  the  property 
by  ejectment  against  third  persons  not  holding  under  the  mort- 
gagor.^ 

22.  In  Connecticut  a  mortgage  passes  the  legal  estate  subject 
to  be  defeated  by  performance  of  the  condition,  and  the  mortgagee 
may  maintain  ejectment;  but  the  mortgagor  is  to  be  regarded  as 
the  owner  of  the  property,  subject  to  the  rights  of  the  mortgagee 
to  enforce  payment  of  his  debt  by  means  of  his  title."^  When  the 
debt  is  satisfied  after  forfeiture,  if  the  legal  title  be  permitted  to 
remain  vested  in  the  mortgagee,  he  holds  it  in  trust  for  the  mort- 
gagor.^ The  mortgage  when  paid  is  no  longer  an  incumbrance, 
though  it  may  be  a  cloud  on  the  title.**  By  the  adoption  in  courts 
of  law  of  equitable  principles  as  to  the  effect  of  a  mortgage,  that 
it  is  a  conveyance  merely  by  way  of  pledge  for  the  debt,  and 
that  the  mortgagee  holds  the  title  solely  for  this  purpose,  a  just 
and  harmonious  system  is  constructed.^  The  mortgagor  is  the 
owner  of  the  mortgaged  land  as  against  every  one  but  the  mort- 
gagee. His  equity  of  redemption  may  be  devised,  granted,  levied 
upon,  and  set  off  in  execution.  The  wife  of  a  mortgagor  is  en- 
titled to  dower,  and  the  husband  of  a  mortgagor  to  curtesy.  A 
mortgagor  in  possession  may  acquire  a  settlement,  may  maintain 
trespass  against  his  mortgagee,  and  may  take  the  emblements, 
without  being  liable  to  account ;  and  although  the  mortgagee  has 
only  a  chattel  interest,  —  a  mere  pledge  for  the  payment  of  the 
debt,  —  yet  the  legal  title  vests  in  him  upon  the  execution  of  the 

1  Johnson  v.  Sherman,  15  Cal.  287.  Dudley  v.  Cadwell,   19  Conn.  218,  227  ; 

2  Drake  v.  Root,  2   Col.  685,  per  Hal-     Phelps  v.  Sage,  2  Day  (Conn),  151. 
lett,  C.  J.  ^  Town  of  Clinton   v.  Town  of  "West- 

8  Eyster  v.  Gaff,  2  Col.  228.  brook,  38   Conn.  9  ;  Dotan  v.  Russell,  17 

*  Chamberlain  I'.  Thompson,  iO  Conn.  Conn.  146,  1.54;    Griswold  v.  Mather,  5 

251  ;  Beach  v.  Clark,  6  Conn.  354  ;  Rock-  Conn.  435,  440 ;  New  Haven  Savings  Bank 

•well  V.  Bradley,  2  Conn.  5 ;  Middletown  v.  McPartlan,  40  Conn.  90. 

Sav.  Bank  v.  Bates.  11  Conn.  519,  523.  '^  Bates  v.  Coe,  10  Conn.  280,  294;  and 

^  Cross  I'.  Robinson,  21  Conn.  379,  387  ;  see  Lacon  v.  Davenport,  16  Conn.  331. 

21 


§§  23-25.]  THE   NATURE   OF   A  MORTGAGE 

mortgage,  subject  to  be  defeated  only  on  performance  of  the  con- 
dition, and  after  condition  broken  the  only  relief  for  the  mortgagor 
is  in  equity.^ 

23.  In  Dakota  Territory  a  mortgage  does  not  entitle  the 
mortgagee  to  the  possession,  but  after  the  execution  of  it  the 
mortgagor  may  agree  to  such  change  of  possession  upon  a  new 
consideration.^ 

24.  In  Delaware  a  mortgage,  as  between  the  mortgagor  and 
mortgagee,  is  only  a  security  for  the  payment  of  the  debt,  and,  so 
long  as  the  mortgagor  continues  in  possession,  does  not  convey  the 
legal  title  to  the  mortgagee ;  but  in  the  mean  time  it  is  a  lien  of 
so  high  a  nature,  that  it  is  not  divested  by  a  sale  of  the  premises 
on  a  judgment  subsequently  obtained  against  the  mortgagor.  Yet 
after  breach  of  the  condition  and  possession  obtained  by  the  mort- 
gagee, the  legal  title  is  in  the  mortgagee,  and  it  is  no  longer  in 
the  power  of  the  mortgagor,  or  any  one  claiming  under  him,  to 
recover  possession  by  ejectment.^  As  against  every  one  but  the 
mortgagee,  the  mortgagor  in  possession  before  foreclosure  is  re- 
garded as  the  real  owner  and  a  freeholder,  with  the  civil  and  po- 
litical rights  belonging  to  that  character.^  The  mortgagee  may, 
upon  breach  of  the  condition,  use  at  the  same  time  all  the  remedies 
the  law  affords  both  against  the  person  and  the  property ;  and  he 
cannot,  without  some  special  equity  in  favor  of  the  debtor,  be  re- 
strained from,  proceeding  at  his  election  upon  either  or  both  his 
remedies.^  ^ 

25.  In  Florida  a  mortgage  is  not  deemed  a  conveyance  so  as 
to  entitle  the  mortgagee  to  recover  possession  without  a  fore- 
closure.*^ 

It  is  held,  however,  that  a  deed  of  trust  conveying  land  to 
trustees,  with  power  to  sell  and  convey  it  in  fee  and  apply  the 
proceeds  to  the  payment  of  certain  liabilities  of  the  grantor,  is 
not  a  mortgage,  which,  by  the  laws  of  this  state,  is  construed  not 

1  Chamberlain  v.  Thompson,  10  Conn.        *  Cooch  v.  Gerry,  3  Har.  (Del.)  280. 
243.  6  Newbold  v.  Newbold,  1  Del.  Ch.  310. 

2  Civil  Code,  1871,  §  1620.  ^  Bush   Dig.    of    Stat.    1872,  pp.    611, 
8  Hall  V.  Tunnell,  1   Houst.  (Del.)  320.     612. 

22 


IN   THE    DIFFERENT    STATES.  [§§  26,  27. 

to  pass  an  estate  in  fee,  but  is  a  conveyance  which  vests  the  legal 
title  in  the  trustees.^ 

26.  In  Georgia  a  mortgage  is  a  mere  security  for  a  debt,  and 
the  mortgagee  can  neither  enter  nor  maintain  ejectment.^  All  he 
can  do  is  to  foreclose  and  sell,  and  make  his  money  out  of  the 
sale ;  and  the  I'ents  and  profits  belong  to  the  mortgagor  until  the 
sale,  for  the  reason  that  the  title  remains  in  him  until  the  sheriff 
sells  him  out,  and  puts  another  in  his  place. ^  No  title  passes  by 
the  mortgage  :  it  is  only  by  foreclosure  that  the  title  is  changed.* 
It  is  now  declared  in  the  Code  that  a  mortgage  is  only  a  security 
for  a  debt,  and  passes  no  title.  ^ 

27.  In  Illinois  it  is  held,  in  accordance  with  the  rulings  of  the 
English  courts  of  common  law  jurisdiction,  that,  as  an  incident  to 
the  ownership  in  fee  by  the  mortgagee,  he  can  enter  before  con- 
dition broken  or  bring  ejectment,  unless  the  mortgage  provides 
that  the  mortgagor  shall  retain  possession.  In  such  case,  and 
always  upon  breach  of  the  condition,  the  mortgagee  may  bring 
his  action  without  giving  the  party  in  possession  any  notice  to 
quit.^  The  condition  is  broken  when  one  or  more  instalments 
are  due  and  unpaid  ;  because,  the  condition  being  an  entirety,  it 
is  indivisible,  and  a  failure  to  pay  any  part  of  the  debt  is  a  breach 
of  the  condition.  The  mortgagee  may  pursue  all  his  remedies  at 
the  same  time :  he  may  proceed  against  the  debtor  personally ; 
against  the  property  by  bill  in  chancery  for  a  strict  foreclosure,  or 
for  a  foreclosure  and  sale ;  or,  when  the  debt  is  all  due,  by  scire 
facias  ;  may  bring  ejectment  for  the  possession,  or  make  peaceable 

entry."  But  even  after  condition  broken,  a  mortgage  is  not  an 
absolute  outstanding  title  of  which  a  stranger  can  take  advantage 
to  defeat  a  recovery  in  ejectment  by  the  mortgagor.^     Except  as 

1  Soutter  V.  Miller,  15  Fla.  625.  6  Code,  1873,  §  1954. 

2  Vason  V.  Ball,  56  Geo.  268;  Davis  v.  ^  Carroll  v.  Ballance,  26  111.  9;  Van- 
Anderson,  1  Geo.  176;  Ilagland  v.  Jus-  sant  v.  Allman,  23  111.  33;  Delahay  v. 
tices,  &c.  10  Geo.  65  ;  Elfe  v.  Cole,  26  Clement,  3  Scam.  202  ;  Nelson  v.  Pinegar, 
Geo.  197;  United  States  v.  Athens  Ar-  30  111.  473;  Jackson  v.  Warren,  32  111. 
mory,  35  Geo.  344  ;  Seals  v.  Cashin,  2  331 ;  Pollock  v.  Maison,  41  111.  516  ;  Har- 
Geo.  Dec.  76.  per  v.  Ely,  70  III.  581. 

3  Vason  V.  Ball,  supra,  per  Jackson,  J.  f  Karnes  v.  Lloyd,  52  111.  113  ;  Erickson 
*  Burnside  v.  Terry,  45  Geo.  621  ;  Jack-     v.  Rafierty,  79  111.  209. 

son  V.  Carswell,  34  Geo.  279.  8  jj.jH  y   Lance,  25  111.  277. 

23 


§§  28-30.]  THE   NATURE   OF   A   MORTGAGE 

against  the  mortgagee,  the  mortgagor  is  regarded  for  all  beneficial 
purposes  as  the  owner  of  the  land.^ 

28.  In  Indiana  the  common  law  doctrine,  that  the  legal  estate 
vests  in  the  mortgagee,  was  adhered  to  many  years,  as  appears 
by  the  earlier  cases ;  but  it  no  longer  prevails.  The  settled  doc- 
trine in  this  state  is  that  a  mortgage  is  but  a  lien  on  the  land 
as  a  security  for  the  debt,  and  that  the  legal  title  remains  in  the 
mortgagor,  subject  to  the  lien  of  the  mortgage.^  It  is  provided 
by  statute  that  in  the  absence  of  stipulations  to  the  contrary,  the 
mortgagor  until  foreclosure  may  retain  possession  of  the  mort- 
gaged estate.^ 

29.  Iowa.  — The  interest  of  the  mortgagee  is  regarded  as  a  lien 
upon  the  land  for  the  debt,  which  may,  by  certain  proceedings, 
ripen  into  a  title,  or  rather  may  divest  the  title  of  the  mortgagor. 
Some  act  of  the  mortgagee  is  necessary,  that  he  may  acquire  an 
indefeasible  title  which  the  mortgagor  will  not  be  able  to  defeat 
by  redemption.  The  interest  of  the  mortgagor  is  an  estate  of  in- 
heritance, which  is  in  no  way  affected  by  the  mortgage  before 
entry  and  foreclosure,  except  by  the  lien  created.  The  fact  that 
a  mortgage  confers  upon  the  mortgagee  a  right  of  entry  upon 
breach  of  the  condition  confers  upon  him  no  additional  right,  in- 
asmuch as  the  right  exists  under  the  law,  without  such  provision.* 
It  is  now  provided  by  statute  that  in  the  absence  of  stipulations 
to  the  contrary  the  mortgagor  retains  the  legal  title  and  the  right 
of  possession.^ 

30.  In  Kansas  the  legal  estate  remains  in  the  mortgagor  after 
making  a  mortgage,  and  it  is  provided  by  statute  that,  in  the  ab- 
sence of  stipulations  to  the  contrary,  he  may  retain  possession  of 
the  mortgaged  estate.^ 

1  Fitch  V.  Pinckard,  4  Scam.  (111.)  69;  mortgagee  could  recover  possession  at  any 
Vallette  v.  Bennett,  69  111.  632,  time  unless  restrained  by  the  terms  of  the 

2  Fletcher  v.  Holmes,  32  Ind.  497,  513  ;    mortgage. 

Francis  v.  Porter,  7   Ind.  213  ;  Morton  v.  *  White  v.  Rittenmyer,  30  Iowa,  268  ; 

Noble,  22   Ind.  160;  Grable  r.  McCulloh,  Courtney  v.   Carr,  6  Iowa,  239;  Hall  v. 

27  Ind.  472;  Keasoner  v.  Edmundson,  5  Savill,  3  Greene  (Iowa),  37. 

Ind.  393.  5  Code,  1873,  p.  357. 

8  2    G.  &  H.   Stat.   p.   335.      Prior  to  ^  Dassler's  Stat.  1876,  c.  68,  §  1. 
1843,  when  this  statute  was  passed,  the 

24 


IN   THE   DIFFERENT    STATES.  [§§  31,  32. 

"  Some  of  the  states  still  adhere  to  the  common  law  view,  more 
or  less  modified  by  the  real  nature  of  the  transaction ;  but  in 
most  of  them,  practically,  all  that  remains  of  the  old  theories  is 
their  nomenclature.  In  this  state,  a  clear  sweep  has  been  made 
by  statute.  The  common  law  attributes  of  mortgages  have  been 
wholly  set  aside  ;  the  ancient  theories  have  been  demolished  ;  and 
if  we  could  consign  to  oblivion  the  terms  and  phrases  —  without 
meaning  except  in  reference  to  those  theories  —  with  which  our 
reflections  are  still  embarrassed,  the  legal  profession,  on  the  bench 
and  at  the  bar,  would  more  readily  understand  and  fully  realize 
the  new  condition  of  things."  ^ 

31.  In  Kentucky  a  mortgage  passes  the  legal  title  to  the  mort- 
gagee. Upon  a  breach  of  the  condition,  or  before  a  breach,  when 
not  restrained  by  the  terms  of  the  mortgage,  he  may  recover  posses- 
sion of  the  property .2  Upon  a  breach  of  the  condition,  also,  the 
title  becomes  absolute  in  the  mortgagee  at  law.  The  only  right 
■which  the  mortgagor  has  is  an  equity  of  redemption.  He  cannot 
prevent  the  legal  operation  of  the  deed  by  showing  that  it  was 
fraudulently  executed  by  him.  This  is  neither  a  valid,  legal,  nor 
equitable  defence.^ 

32.  In  Louisiana  a  mortgage  is  a  species  of  alienation,  but 
not  a  sale.  It  is  an  alienation  of  a  right  on  the  jaroperty,  not  of 
the  property  itself.  The  title,  as  well  as  the  possession,  remains 
in  the  owner. ^ 

The  Civil  Code  of  this  state  defines  a  mortgage  as  "  a  right 
granted  to  the  creditor  over  the  property  of  the  debtor  for  the  se- 
curity of  his  debt,  and  gives  him  the  power  of  having  the  prop- 
erty seized  and  sold  in  default  of  payment. 

"  Mortgage  is  a  species  of  pledge,  the  thing  mortgaged  being 
bound  for  the  payment  of  the  debt,  or  fulfilment  of  the  obligation. 

"  The  conventional  mortgage  is  a  contract,  by  which  a  person 
binds  the  whole  of  his  property,  or  a  portion  of  it  only,  in  favor 
of  another,  to  secure  the  execution  of  some  engagement,  but  with- 
out divesting  himself  of  the  possession."  ^ 

1  Chick  V.  "Willetts,  2  Kans.  384.  ^  Brookover  v.  Hurst,  supra. 

2  Stewart  f.  Barrow,  7  Bush  (Ky.)>  368  ;  *  Ducland  i'.  Rousseau,  2  La.  Ann.  168. 
Brookover  v.  Hurst,  1  Met.  (Ky.)  665;  &  Civ.  Code,  1870,  arts.  3278,  3279, 
Kedman  v.  Sanders,  2  Dana  (Ky.),  68.  3290. 

25 


§§  33-35.]  THE  NATURE   OF  A   MORTGAGE 

A  conventional  mortgage  is  one  founded  upon  the  covenants  of 
the  parties  in  contradistinction  to  a  legal  mortgage. 

33.  In  Maine  a  mortgage  vests  the  mortgagee  with  the  legal 
estate/  and  it  is  provided  by  statute  that  he  may  enter  before 
breach  of  the  condition,  when  there  is  no  agreement  to  the  con- 
trary.^  The  mortgagor,  as  to  every  one  but  the  mortgagee,  is 
considered  as  having  the  legal  estate  and  the  power  of  conveying 
it  or  incumbering  it  subject  to  the  lien  of  the  mortgage.^ 

34.  Maryland.  —  The  mortgagee  has  the  legal  estate,  and  is 
entitled  to  possession  immediately  upon  the  execution  of  the  mort- 
gage, unless  there  is  some  agreement  of  the  parties  to  the  con- 
trary.* Ordinarily  he  may  pursue  all  his  remedies  at  the  same 
time.^  As  to  all  other  persons,  the  mortgagor  is  deemed  the 
owner.  He  may,  therefore,  when  the  mortgage  allows  him  to 
remain  in  possession  until  default,  maintain  ejectment  against  a 
third  party,  wlio  rests  his  defence  entirely  on  possession,  and  an 
outstanding  title  in  the  mortgagee.^  Moreover,  being  the  sub- 
stantial owner,  he  is  entitled  to  sue  for  damages  done  the  estate 
by  a  third  person.'^ 

35.  In  Massachusetts  the  English  characteristics  of  a  mort- 
gage are  retained.  It  confers  upon  the  mortgagee  a  legal  estate 
and  the  right  of  possession.  "  The  first  great  object  of  a  mort- 
gage," says  Chief  Justice  Shaw,^  "  is  in  the  form  of  a  conveyance 
in  fee,  to  give  to  the  mortgagee  an  effectual  security,  by  the  pledge 
or  hypothecation  of  real  estate,  for  the  payment  of  a  debt,  or  the 
performance  of  some  other  obligation.  The  next  is  to  leave  to 
the  mortgagor,  and  to  purchasers,  creditors,  and  all  others  claim- 
ing derivatively  through  him,  the  full  and  entire  control,  disposi- 
tion, and  ownership  of  the  estate,  subject  only  to  the  first  pur- 

1  Blaney  v.  Bearce,  2  Me.  132.  Annapolis,  &c.  R.  Co.  v.  Gantt,  39  Md. 

2  Rev.  Stat.  1871,  c.  90,  §  2.  115. 

8  Wilkins  V.  French,  20  Me.  111.  ■MVilhelm    v.   Lee,   2    Md.    Ch.   322; 

*  Brown  v.   Stewart,   1   Md.   Ch.   87  ;  Brown  v.  Stewart,  1  Md.  Ch.  87. 

Leishton  v.  Preston,  9  Gill  (Md.),  201  ;  6  Georges   Creek  Coal   &  Iron   Co.  v. 

Jamieson  v.  Bruce,  6  G.  &  J.  (Md.)  72,  Detmold,  1  Md.  237. 

per  Archer.  J. ;    McKim  v.  Mason,  3  Md.  ^  Annapolis,  &c.  R.  Co.  v.  Gantt,  39  Md. 

Ch.  186;  Sumwalt  v.  Tucker,  34  Md.  89;  115. 


26 


»  Ewer  V.  Hobbs,  5  Met.  1-3. 


IN    THE   DIFFERENT    STATES.  [§§  36,  37. 

pose,  that  of  securing  the  mortgagee.  Hence  it  is,  that,  as  be- 
tween mortgagor  and  mortgagee,  the  mortgage  is  to  be  regarded 
as  a  conveyance  in  fee  ;  because  that  construction  best  secures 
him  in  his  remedy  and  his  ultimate  right  to  the  estate,  and  to  its 
incidents,  the  rents  and  profits.  But  in  all  other  respects,  until 
foreclosure,  when  the  mortgagee  becomes  the  absolute  owner,  the 
mortgage  is  deemed  to  be  a  lien  or  charge,  subject  to  which  the 
estate  may  be  conveyed,  attached,  and  in  all  other  respects  dealt 
with  as  the  estate  of  the  mortgagor.  And  all  statutes  upon  the 
subject  are  to  be  so  construed  ;  and  all  rules  of  law,  whether  ad- 
ministered in  law,  or  in  equity,  are  to  be  so  applied  as  to  carry 
these  objects  into  effect."  And  in  another  case  the  same  eminent 
jurist  says :  ^  "  Mortgaging  is  not  such  a  conveying  away  of  the 
estate  as  divests  the  entire  title  of  the  owner.  It  is  a  charge  or 
incumbrance  created  out  of  that  estate,  and  may  amount  to  a 
small  part  only  of  its  value.  Although,  as  between  mortgagor 
and  mortgagee,  it  is  a  transmission  of  the  fee,  which  gives  the 
mortgagee  a  remedy  in  the  form  of  a  real  action,  and  constitutes 
a  legal  seisin ;  yet  to  most  other  purposes  a  mortgage,  before  the 
entry  of  the  mortgagee,  is  but  a  pledge  and  real  lien,  leaving 
the  mortgagor  to  most  purposes  the  owner."  ^ 

36.  In  Michigan  no  action  of  ejectment  can  be  maintained  by 
a  mortgagee,  or  his  assigns  or  representatives,  for  the  recovery  of 
the  mortgaged  premises,  until  the  title  shall  have  become  absolute 
upon  a  foreclosure  of  the  mortgage.^  The  mortgagee  has  no  legal 
title  in  the  land  mortgaged,  but  only  a  lien  for  the  security  of  the 
mortgage  debt.* 

37.  In  Minnesota  it  is  declared  by  statute  that  a  mortgage  of 
real  property  shall  not  be  deemed  a  conveyance,  so  as  to  enable 
the  owner  of  the  mortgage  to  recover  possession  of  it  without  a 
foreclosure."    Referring  to  this  statute  Chief  Justice  Emmett  says  :  ^ 

1  Howards.  Kobinson,  5  Cush.  119-123.         *  Caruthers    v.    Humphrey,    12    Mich. 

2  See,  also,  Norcross   v.  Norcross,  105     270  ;  Gorham  v.  Arnold,  22  Mich.  247. 
Mass.  265 ;   Bnidley  v.  Fuller,  23  Pick.        ^  Revision  1866,  p.  540. 

(Mass.)  1,  9  ;  Hapgood  v.  Blood,  11  Gray  ®  Adams  r.  Corriston,  7  Minn.  450  ;  and 

(Mass.),  400;  Sparhawk  v.  Bagg,  16  lb.  see  Donnelly  v.  Simonton,  7  Minn.  167; 

583;  Steel  v.  Steel,  4  Allen  (Mass.),  417;  Berthold  v.  Holman,  12  Minn.  335;  Ber- 

Silloway  i-.  Brown,  12  lb.  30.  thold  v.  Fox,  13  Minn.  501. 
8  Comp.  Laws  of  Mich.  1871,  p.  1775.] 

27 


§  38.]  THE   NATURE   OF   A   MORTGAGE 

"  This,  it  appears  to  me,  deprives  the  mortgagee  of  the  only  ma- 
terial advantage  which  remained  to  him  from  being  considered  the 
owner  of  the  fee  ;  and  although,  out  of  deference  to  the  past,  we 
may  still  regard  him  as  the  legal  owner,  he  is  such  in  theory  only, 
having  no  right  to  interfere  with  the  possession  save  by  consent 
of  the  mortgagor.  The  effect  of  the  change  just  referred  to  is  to 
dissipate  whatever  of  the  title  he  may  formerly  have  had,  beyond 
that  of  a  mere  lien  or  security.  And  although  the  mortgagee 
may,  by  obtaining  a  strict  foreclosure,  eventually  secure  posses- 
sion, and  thus  complete  his  title  under  the  mortgage,  yet,  as  the 
courts  may,  and  in  practice  generally  do,  direct  the  property  to  be 
sold,  even  when  a  strict  foreclosure  is  asked  for,  he  is  by  no  means 
certain  of  ever  perfecting  that  title,  which  the  mortgage  purports 
to  convey.  And  if  the  property,  by  direction  of  the  court  or 
otherwise,  be  sold  to  satisfy  the  mortgage,  the  purchaser,  when  he 
receives  his  deed,  takes,  not  the  title  of  the  mortgagee,  for  that  is 
extinguished  by  the  application  of  the  proceeds  of  the  sale  ;  nor 
does  he  take  simply  the  title  of  the  mortgagor  at  the  time  of 
the  sale,  for  that  is  incomplete  ;  but  he  takes  the  title  which 
was  in  the  mortgagor  at  the  time  the  mortgage  was  given,  which 
is  equivalent  to  both." 

38.  In  Mississippi  upon  a  breach  of  the  condition  of  a  mort- 
gage the  legal  title  becomes  absolute  in  the  mortgagee,  who  there- 
upon becomes  entitled  to  the  possession  of  the  property  as  an 
incident  to  the  title. ^  The  Code  now  provides  that  before  a  sale 
under  a  mortgage,  or  deed  of  trust,  the  mortgagor  or  grantor  shall 
be  deemed  the  owner  of  the  legal  title  of  the  property  conveyed, 
except  as  against  the  mortgagee  and  his  assigns,  or  the  trustee, 
after  breach  of  the  condition  of  the  mortgage  or  deed.^  The  debt 
is  considered  as  the  principal,  and  the  mortgage  as  an  incident 
only.  The  mortgagee,  notwithstanding  the  form  of  the  convey- 
ance, has  but  a  security.  The  principles  long  established  in  chan- 
cery have,  under  the  Code,  become  naturalized  in  the  courts  of 
common  law,  so  that  until  foreclosure  the  mortgagee  is  regarded 
as  having  a  chattel  interest  only.  Even  after  the  mortgagee  has 
taken  possession,  the  mortgaged  estate  is  regarded  as  a  pledge 
only.     "  The  relation   of  debtor  and  creditor  exists,"  says  Chief 

1  Hill  V.  Robertson,  24  Miss.  368;  Har-         2  Rgv.  Code,  1871,  §  2295. 
mon  V.  Short,  8  Sm.  &  M.  (Miss.)  433. 

28 


IN   THE   DIFFERENT   STATES.  [§  39. 

Justice  Peyton,!  u  ^nd  the  equity  of  redemption  is  unimpaired. 
Although  the  mortgagee  has  a  chattel  interest  only,  yet  in  order  to 
render  his  pledge  available,  and  give  him  the  intended  benefit  of 
his  security,  it  is  considered  as  real  property  to  enable  him  to 
maintain  ejectment  for  the  recovery  of  the  possession  of  the  land 
mortgaged ;  when  contemplated  in  every  other  point  of  view,  it  is 
personal  property. 

As  respects  third  persons,  and  the  mortgagee  also,  until  after 
forfeiture,  the  mortgagor  is  the  owner  of  the  legal  estate,  and  the 
mortgagor  has  only  a  security  for  the  debt.  "  The  legal  title," 
says  Chief  Justice  Simrall,  in  a  recent  case,^  "  may  be  asserted 
by  the  mortgagee,  but  only  for  the  protection  of  his  debt,  and  to 
make  the  security  available  for  its  payment." 

39.  Missouri.  —  By  a  mortgage,  or  a  deed  of  trust  in  the  na- 
ture of  a  mortgage,  the  legal  title,  after  condition  broken,  passes 
to  the  mortgagee  or  trustee.  The  addition  of  a  power  to  sell, 
without  judicial  proceedings  to  foreclose,  cannot  avoid  the  legal 
effect  of  the  grant.^  The  trustee,  after  dishonor  of  the  notes  se- 
cured, may  enter,  and  without  sale  or  foreclosure  may  maintain  his 
possession  for  the  use  of  the  beneficiary,  not  only  against  all  out- 
siders but  against  the  maker  of  the  deed  himself,  until  the  pay- 
ment of  the  debt.  It  has  Ions;  been  established  in  this  state  that 
after  condition  broken. the  mortgagee  may  maintain  ejectment.^ 

Where  a  mortgage  debt  is  payable  by  instalments,  the  condition 
is  broken  by  non-payment  of  any  one  of  them,  and  the  mortgagee 
may  thereupon  enter  or  bring  ejectment,  and  it  is  no  defence  to 
such  a  suit  that  all  the  instalments  are  not  due.  The  authoriza- 
tion contained  in  a  mortgage,  to  sell  only  in  event  that  "  the 
said  notes  should  not  be  well  and  truly  paid,"  should  be  construed 
to  mean  in  case  they  should  not  be  paid  as  they  respectively  be- 
come due.  The  mortgagee  is  not  by  such  condition  compelled  to 
■wait  till  the  last  note  is  dishonored  before  applying  his  remedy .^ 
But  although  a  mortgage  is  a  conveyance  in  fee  upon  condition,  it 
is,  even  after  the  condition  is  broken  and  the  legal  title  has  passed 

1  In    Buckley  v.  Daley,  45  Miss.  338,     227 ;  Woods  v.  Ililderbrand,  46  Mo.  284 ; 
345;  and   to  same  eflFect  in  Carpenter  v.     Kennctt  v.  Plummer,  28  Mo.  142. 
Bowen,  42  Miss.  28,  49.  *  Walcop  i'.  McKiiiney,  10   Mo.   229; 

2  Buck  V.  Payne,  52  Miss.  271.  Sutton  v.  Mason,  38  Mo.  120;  Reddick 
8  Johnson   et   al.    v.  Houston,  47    Mo.     v.  Gressman,  49  Mo.  389. 

6  Keddick  v.  Gressman,  49  Mo.  389. 
29 


§§  40-42.]  THE   NATURE   OF   A  MORTGAGE 

to  the  mortgagee,  merely  a  security  for  the  debt,  and  is  extin- 
guished, and  the  title  revested,  whenever  the  debt  is  paid.^ 

40.  Nebraska. —  The  doctrine  that  the  mortgagor  is  not  seised 
of  the  freehold,  either  at  law  or  in  equity,  either  before  or  after 
condition  broken,  is  established.^  It  is  provided  by  statute  that 
the  mortgagor  may  retain  possession  until  foreclosure,  unless  other- 
wise stipulated  by  the  parties.^ 

A  deed  of  trust  to  secure  the  payment  of  a  debt  being  in  effect 
a  mortgage  is  held,  in  accordance  with  the  general  rule  that  a  mort- 
gage does  not  pass  the  legal  title,  not  to  vest  a  legal  estate  in  the 
trustee.^ 

41.  In  Nevada  the  court  seem  inclined  to  hold  that  the  title 
does  not  pass  from  the  mortgagor  before  breach  of  the  condition.^ 
It  is  provided  by  statute  that  a  mortgage  of  real  property  shall 
not  be  deemed  a  conveyance,  whatever  its  terms,  so  as  to  enable 
the  owner  of  the  mortgage  to  recover  possession  of  the  land,  with- 
out a  foreclosure  and  sale.^ 

42.  New  Hampshire.  —  The  seisin,  or  possession,  as  well  as 
the  title,  passes  directly  to  the  mortgagee  unless  he  is  restrained 
by  the  provisions  of  the  deed  ;  and  upon  a  breach  of  the  condition 
he  is  in  any  case  entitled  to  the  possession.  The  mortgagor  re- 
tains, as  against  the  mortgagee,  nothing  more  than  a  mere  power 
to  regain  the  fee  upon  the  performance  of  a  condition,  and  this 
condition  is  strictly  a  condition  precedent."  As  against  all  other 
persons  the  mortgagor  is  regarded  as  the  owner,  and  may  main- 
tain a  real  action  to  recover  the  possession.  The  mortgagor  has 
the  legal  title  merely  so  far  as  is  necessary,  in  order  to  enable  him 
to  obtain  the  full  benefit  of  the  security,  and  prevent  any  viola- 
tion of  his  rights  under  the  mortgage.^     Whenever  the  mortgagee 

1  Pease  v.  Pilot  Knob  Iron  Co.  49  Mo.         ^  Brown  v.  Cram,  1  N.  H.  169  ;   South- 
124.  erin  v.  Mendum,  5  N.  H.  420 ;  McMurphy 

2  Kyger  v.  Ryley,  2  Neb.  20,  28.  i'.  Minot,  4  N.  H.  255  ;  Tripe  v.  Marcy, 
8  Gen.  Stat.  1873,  ch.  61,  §  55.  39  N.  H.  439;  Hobart  v.  Sanborn,  13  N. 
*  Webb  V.  Hoselton,  4  Neb.  308  ;  Kyger    H.  226. 

V.  Ryley,  2  Neb.  20,  28.  8  Ellison  v.  Daniels,  11  N.  H.  274  ;  Par- 

6  Whitmore  v.  Shiverick,  3  Nev.  288;     ish  u.  Gilmanton,  11  N.  H.  293,  298;  Whit- 

Hyman  v.  Kelly,  1  Nev.  179.  tcmore  v.  Gibbs,  24  N.  H.  484 ;  Great  Falls 

6  1  Comp.  Laws,  §  1323.  Co.  v.  Wovster,  15  N.  H.  412,  444. 
80 


IN   THE  DIFFERENT   STATES.  [§§  43,  44. 

is  entitled  to  possession  he  may  doubtless  treat  the  possession  of 
the  mortgagor  as  a  disseisin,  at  his  election,  and  may  at  once  main- 
tain a  writ  of  entry  for  the  recovery  of  the  possession,  without 
any  notice  to  quit ;  but  until  such  election  the  possession  of  the 
mortgagor  cannot  be  regarded  as  a  disseisin,  but  as  permissive, 
and  bearing  in  many  respects  a  close  analogy  to  a  strict  tenancy 
at  will  or  at  sufferance.  Until  this  power  of  election  is  exer- 
cised, the  mortgagor  is  in  with  the  privity  and  assent  of  the  mort- 
gagee, and  in  subordination  to  his  title  ;  and  it  is  therefore  held, 
that  upon  the  ground  of  such  presumed  assent,  the  mortgagor  is 
not  liable  to  the  mortgagee  for  the  rents  and  profits  while  so  in 
possession.^ 

43.  In  New  Jersey  the  nature  of  the  mortgage  as  a  convey- 
ance of  an  estate  to  the  mortgagee,  in  fee  simple,  subject  to  be 
defeated  by  the  performance  of  the  condition,  remains  as  it  was 
at  common  law,  with  the  modification  that  the  mortgagee  cannot 
enter  immediately  as  at  common  law,  but  only  upon  breach  of  the 
condition.^  A  mortgage  is  merelj^  auxiliary  to  the  debt,  and  the 
estate  of  the  mortgage  is  annihilated  by  the  extinguishment  of  the 
debt  secured  by  it,  even  after  the  day  of  payment  named  in  the 
condition.  In  fact,  the  latter  conclusion  will  necessarily  follow 
whenever  the  mortgage  is  regarded,  not  as  a  common  law  convey- 
ance on  condition,  but  as  a  security  for  the  debt,  the  legal  estate 
being  considered  as  subsisting  only  for  that  purpose.  In  this 
state,  this  is  the  generally  received  aspect  in  which  a  mortgage  is 
regarded,  as  a  mere  security  for  the  debt.^ 

44.  New  York.  —  Following  the  views  of  Lord  Mansfield,  the 
courts  of  New  York  from  the  first  regarded  a  mortgage  as  merely 
a  security  of  a  personal  nature  upon  the  land  of  the  mortgagor, 
who  retained  the  legal  title,  at  least  until  possession  taken.^ 

1  Chellis  V.  Stearns,  22  N.  H.  196,  215;  whose  dissenting  opinion  was  adopted  in 
Furbush  v.  Goodwin,  29  N.  H.  321,  332.  the  Court  of  Errors,  2  South.  865. 

2  Sanderson  v.  Price,  1  Zab.  (N.  J.)  646,  *  Waters  v.  Stewart,  1  Caines  Cas.  47, 
note  ;  Shields  v.  Lozear,  34  N.  J.  L.  496,  per  Kent,  J.  :  Jacls:son  v.  Willard,  4  Johns, 
per  Depue,  J.  42;    Ruuyan    v.   Mersereau,  11    lb.    534; 

8  Shields  v.  Lozear,  34  N.  J.  L.  496,  per  Packer  v.  Kochester,  &c.  R.  Co.  17  N.  Y. 

Depue,   J.,  citing    Osborne   i-.   Tunis,    1  283  ;  Power  v.  Lester,  23  N.  Y.  527  ;  Mer- 

Dutch.  (N.  J.)  651  ;  Montgomery  v.  Bru-  ritt  v.  Bartholick,  36  N.  Y.  44  ;  Trimm  v. 

ere,  1  South.  (N.J.)  279,  per  Southard,  J.,  Marsh,  54  N.  Y.  599;  Bryan  t;.  Butts,  27 

31 


§§  45,  46.]  THE   NATURE   OF   A  MORTGAGE 

But  prior  to  the  Revised  Statutes  of  1828,  the  title  of  the  mort- 
gagee must  in  fact  have  been  something  not  very  different  from 
the  legal  estate,  for  unless  prevented  by  the  terms  of  the  mort- 
gage he  had  the  right  to  recover  possession  of  the  property  by 
ejectment,  and  after  default  he  could  so  recover  it  at  any  time. 
This  right  was  taken  away  then,  and  so  far  as  possession  before 
foreclosure  is  concerned,  his  only  right  is  to  retain  possession 
when  he  has  once  obtained  it  by  the  mortgagor's  consent.^  It  is 
said  that  he  does  not,  however,  acquire  any  estate  from  his  pos- 
session.^ 

45.  In  North  Carolina  upon  the  execution  of  a  mortgage,  the 
mortgagor  becomes  the  equitable  and  the  mortgagee  the  legal 
owner,  and  this  relative  situation  remains  until  the  mortgage  is 
redeemed  or  foreclosed.  Until  the  day  of  redemption  is  passed 
the  mortgagor  has  no  special  equity,  but  he  may  pay  the  money 
according  to  the  proviso,  and  avoid  the  conveyance  at  law,  and 
this  privilege  is  termed  his  legal  right  of  redemption. ^ 

After  the  special  day  of  payment  has  passed,  the  mortgagor 
still  has  an  equity  of  redemption,  until  there  is  a  foreclosure,  and 
this  right  is  regarded  as  a  continuance  of  the  old  estate,  and  so 
long  as  he  is  permitted  to  remain  in  possession,  he  is  considered 
to  hold  in  respect  to  his  ownership,  and  is  not  accountable  for  the 
rents  and  profits  of  the  mortgaged  lands. 

If  the  mortgagor  be  allowed  to  remain  in  j)OSsession  for  a  long 
period  by  the  acquiescence  and  implied  approval  of  the  mortgagee, 
he  is  not  a  trespasser ;  and  although  he  may  not  be  a  tenant,  he 
is  a  permissive  occupant,  and  as  such  is  entitled  to  a  reasonable 
demand  to  terminate  the  implied  license  before  an  action  can  be 
brought  to  recover  possession.'* 

46.  In  Ohio  a  mortgagee  is  regarded  as  holding  the  legal  title 

Barb.  (N.  Y.)  503 ;  Calkins  v.  Calkins,  3  »  Hemphill  v.  Ross,  66  N.  C.  477 ;  and 

lb.  305  ;   Stanard  v.  Eldridge,  16  Johns,  see   Ellis   v.    Hussey,   66  N.  C.   501.     A 

(N.  Y.)  254;   Curtis  v.  Bronson,  19  lb.  mortgagor   in   possession   is  a  freeholder 

325;  Astor  v.  Hoyt,  5  Wend.  (N.  Y.)  603;  within  the  meaning  of  an  act  relating  to 

S.  C.  2  Paige,  68;  Bell  v.  Mayor  of  New  jurors.     He  has  not  any  legal  estate,  but 

York,  10  Paige  (N.  Y.),  49.  the  act  does  not  provide  that  he  shall  be  a 

1  2  11.  S.  312,  §  57;    Waring  v.  Smyth,  legal  freeholder;    that  he  is  an  equitable 

2  Barb.  (N.  Y.)  Ch.  119,  135.  freeholder  is  sufficient.     State  v.  Ragland, 

'^  Parker  v.  Rochester  &   Syracuse   R.  75  N.  C.  12. 

Co.  17  N.  Y.  283,  295.  *  Hemphill  v.  Ross,  supra. 
32 


IN   THE   DIFFERENT   STATES.  [§§  47,  48. 

to  tbe  estate  during  the  continuance  of  the  mortgage,  but  whether 
in  a  court  of  law  or  of  equity  lie  is  permitted  to  use  this  legal  title 
only  for  the  purpose  of  making  effectual  the  security.^  The  legal 
title  as  between  tbe  parties  is  held  to  be  in  the  mortgagee.  As 
to  all  the  world  beside,  it  is  in  the  mortgagor.  After  condition 
broken,  the  mortgagee  may  recover  possession  by  an  action  of 
ejectment.2 

47.  By  statute  in  Oregon  a  mortgagor  cannot  against  his  will 
be  divested  of  possession  of  the  mortgaged  premises,  even  upon 
default,  without  a  foreclosure  and  sale.'^ 

But  if  a  mortgagor  choose,  he  can  give  possession  to  the  mort- 
gagee, and  when  this  is  done,  and  the  duration  of  the  mortgagee's 
possession  is  not  limited  by  agreement,  he  may  retain  possession 
until  the  debt  is  paid ;  and  until  it  be  paid  the  mortgagor  cannot 
recover  possession  by  an  action  of  ejectment.* 

48.  In  Pennsylvania  a  mortgage  passes  to  the  mortgagee  the 
title  and  rio-ht  of  possession  to  hold  till  payment  shall  be  made. 
He  may  enter  at  pleasure,  and  take  actual  possession.  His  estate 
is  conditional,  and  ceases  upon  payment  of  the  debt;  but  until 
the  condition  is  performed,  both  his  title  and  his  right  of  pos- 
session are  as  substantial  and  real  as  though  they  were  absolute. 
"  Thus  we  perceive,"  says  Chief  Justice  Agnew  in  a  recent  case,^ 
"  an  interest,  or  estate  in  the  land  itself,  capable  of  enjoyment, 
and  enabling  the  mortgagee  to  grasp  and  hold  it  actually,  and  not 
a  mere  lien  or  potentiality,  to  follow  it  by  legal  process  and  con- 
demn it  for  payment.  The  land  passes  to  the  mortgagee  by  the 
act  of  the  party  himself,  and  needs  no  legal  remedy  to  enforce  the 
right.  But  a  lien  vests  no  estate,  and  is  a  mere  incident  of  the 
debt,  to  be  enforced  by  a  remedy  at  law,  which  may  be  limited. 
It  is  true,  if  the  mortgagee  be  held  out,  he  may  have  to  resort  to 
ejectment,  but  this  is  to  avoid  a  conflict,  and  the  statutory  penal- 

1  Harkrader  v.  Leiby,  4   Ohio  St.  602.         «  Civil   Code,  §  323  ;   Besser  v.   Haw 
"  But  it  is  incorrect  to  say  that  a  mortgage     thorne,  3  Oreg.  129. 

does  no  more  than  to  create  a  mere  lien  *  Roberts  v.  Sutherlin,  4  Oreg.  219. 

upon  the  property."     Per  Kanney,  J.  °  Tryon  i-.    Munson,   77    Pa.  St.  250 ; 

2  Allen  V.  Everly,  24  Ohio  St.  97,  114  ;  and  see  numerous  cases  in  that  state  cited 
Rands  i-.  Kendall,  15  Ohio,  671.  by  the  learned  judge  in  support,  and  in 

illustration,  of  this  doctrine. 
VOL.  I.  3  33 


§§  49,  50.]  THE   NATURE   OF   A   MORTGAGE 

ties  for  forcible  entry,  for  otherwise  he  may  take  peaceable  pos- 
session, and  is  not  liable  as  a  trespasser." 

The  law  is,  that  as  between  the  parties  the  mortgage  transmits 
the  legal  title  to  the  mortgagee,  and  leaves  the  mortgagor  only  a 
right  to  redeem.  As  to  all  others  the  mortgage  is  a  lien  merely 
and  not  an  estate.  This  is  the  view  taken  both  in  courts  of  equity 
and  courts  of  law.^ 

It  is  well  settled  that  a  mortgagee  or  his  assignee  may  maintain 
ejectment  and  recover  possession  of  the  mortgaged  property  before 
the  condition  is  broken,  unless  there  be  a  stipulation  in  the  instru- 
ment to  the  contrary .2 

49.  Rhode  Island.  —  The  common  law  doctrine  of  the  nature 
of  mortgages  prevails  in  this  state.  The  mortgagee  may  recover 
possession  by  suit  at  law.  Upon  any  breach  of  the  condition,  such 
as  the  non-payment  of  interest,  the  mortgagee  may  maintain  eject- 
ment, though  the  principal  sum  be  not  due.^  "  Formerly,"  says 
Chief  Justice  Ames,"*  "  the  right  of  the  mortgagor  was,  upon 
breach  of  the  condition  of  the  mortgage,  wholly  gone  at  law  ;  and 
his  equity  to  redeem  was  recognized  only  by  the  tribunal  able  to 
enforce  such  a  right.  It  is  true  that  in  modern  times  the  courts 
of  law  have,  for  many  purposes,  treated  the  mortgagor  in  posses- 
sion as  the  real  owner  of  the  estate,  looking  upon  a  mortgage  in 
the  same  light  that  a  court  of  equity  does,  as  a  mere  security  for 
the  mortgage  debt ;  but  we  can  see  no  reason  why  such  courts 
should  recognize  in  a  mortgagor  in  possession  under  a  forfeited 
mortgage  greater  rights  over  the  mortgaged  estate  than  courts  of 
equity  do."  The  mortgagee's  remedy  for  waste  done  by  the  mort- 
gagor, when  a  writ  of  estrepement  will  not  lie,  is  usually  to  be 
sought  in  equity ;  but  it  is  a  wrong  at  law  also,  and  therefore  a 
mortgagee  may  maintain  against  a  mortgagor  in  possession  an 
action  of  replevin  for  wood  and  timber  cut  on  the  land  in  waste 
of  the  same.^ 

50.  By  statute  in  South  Carolina  it  is  provided  that  the  mort- 
gagee shall  not  be  entitled  to  maintain  any  possessory  action  for 

1  Brobst  V.  Brock,  10  Wall.  519.  *  Waterman  v.  Matteson,  4  R.  I.  539, 

2  Youngman   v.   Elmira,  &c.    Railroad     545. 

Co.  65  Penn.  St.  278,285,  and  cases  cited.        *  Waterman  v.  Matteson,  supra, 
^  Carpenter  v.  Carpenter,  6  R.  I.  542. 

34 


IN   THE   DIFFERENT   STATES.  [§§  51-55. 

the  mortgaged  estate  even  after  the  mortgage  is  due,  but  that  the 
moi'tgagor  shall  still  be  deemed  the  owner  of  the  land  and  the 
mortgagee  as  owner  of  the  money  lent  or  due.^ 

51.  In  Tennessee  the  legal  title  vests  in  the  mortgagee,  who 
is  entitled  to  immediate  possession,  unless  the  mortgage  otherwise 
provides.  He  may  recover  possession  without  first  giving  notice 
to  quit.2 

52.  Texas.  —  A  mortgage  is  but  a  security,  and  the  title  re- 
mains in  the  mortgagor,  subject  to  be  divested  by  foreclosure.  In 
this  respect  a  deed  of  trust  is  held  not  to  differ  from  a  mortgage  ; 
the  legal  title  and  right  of  possession  remain  with  the  grantor.^ 

53.  Utah  Territory.  —  It  is  provided  that  a  mortgage  shall 
not  be  deemed  a  conveyance,  so  as  to  entitle  the  mortgagee  to  re- 
cover possession  without  foreclosure.* 

54.  In  Vermont  the  mortgagor's  right  of  possession  is  by  stat- 
ute continued  as  against  the  mortgagee  until  condition  broken, 
unless  otherwise  stipulated  in  the  mortgage.^  Upon  the  happen- 
ing of  that  event  the  interest  of  the  mortgagor  becomes  abso- 
lutely vested  in  the  mortgagee,  and  he  has  a  right  to  the  immedi- 
ate possession  of  the  estate.^  He  may  assert  this  right  by  entering 
peaceably  by  his  own  act,  or  may  bring  an  action  of  ejectment 
without  previous  notice  to  quit.  Until  he  asserts  this  right,  the 
mortgagor  in  possession  is  regarded  as  the  owner  of  the  land,  and 
may  use  and  occupy  it  without  accounting  to  the  mortgagee.'^ 

55.  Virginia.  —  At  law,  the  mortgagee  has  the  legal  estate, 
and  the  immediate  right  of  possession,  unless  there  be  some  stipu- 
lation in  the  mortgage  deed  to  the  contrary.  Upon  a  breach  of 
the  condition,  the  mortgagee  may  enter,  or  recover  possession  by 

1  R.  S.  1873,  p.  536  ;  Thayer  v.  Cramer,  *  Civil  Practice  Act,  1870,  §  260. 
1    McCord    (S.   C.)    Ch.   395;    Nixon  v.  6  Gen.  Stat.  1870,  c.  40,  §  12. 
Bynum,   1   Bailey  (S.   C),  148;  Hughes  ^  Hagar  v    Brainerd,  44  Vt.  294 ;  Lull 
v.  Edwards,  9  Wheat.  489.  i'.  Matthews,  19  Vt.  322. 

2  Henshawr.  Wells,  9  Humph.  (Tenn.)  •   Hooper  v.  Wilson,  12  Vt.  695;    Wil- 
568;  Vancei;.  Johnson,  10  lb.  214.  son   v.    Hooper,    13  Vt.  653;  Walker   v.. 

*  Wright  V.   Hender-son,  12   Tex.  43  ;     King,  44  Vt.  601. 
Walker  v.  Johnson,  37  lb.  127, 129  ;  Mann 
V.  Falcon,  25  Tex.  271. 

35 


§§  56-58.]  THE  NATURE    OF   A   MORTGAGE 

action,  without  previous  notice.  He  is  then,  to  all  intents  and 
purposes,  the  legal  owner  of  the  land,  and  vested  with  full  legal 
title.  The  mortgagor  is  then  regarded  as  a  tenant  at  sufferance, 
and  is  not  entitled  to  the  emblements.  In  equity,  however,  the 
mortgagor  may  redeem,  and  the  mortgagee  in  jjossession  is  re- 
garded as  merely  a  trustee  of  the  property,  with  liability  to  ac- 
count.^ Trust  deeds  are  used  almost  exclusively  in  place  of  mort- 
gages, and  the  legal  title  vests  in  the  grantee  in  such  deeds. 

66.  "West  Virginia.  —  Trust  deeds  are  used  in  place  of  mort- 
gages. The  law  in  regard  to  mortgages  is  that  which  prevailed 
in  Virginia  before  the  separation. 

57.  In  Wisconsin,  the  fee  of  the  premises  does  not  vest  in  the 
mortgagee,  except  upon  foreclosure  sale.^  It  is  provided  by  stat- 
ute that  'no  action  shall  be  maintained  by  the  mortgagee  for  the 
recovery  of  possession  of  the  mortgaged  premises  until  the  equity 
of  redemption  shall  have  expired.^  The  statute  in  effect  pre- 
serves the  fee  in  the  mortgagor  until  foreclosure,*  when  it  vests  in 
the  purchaser  at  the  sale.  When,  however,  the  mortgagee  has, 
after  default,  gone  into  peaceable  possession,  he  cannot  be  ejected 
by  the  mortgagor  while  the  mortgage  remains  unsatisfied.  The 
only  remedy  of  the  mortgagor  is  by  bill  to  redeem,  upon  which 
he  must  pay  whatever  is  due  upon  the  mortgage  debt.^ 

58.  As  a  summary  of  this  examination  it  will  be  found  that 
in  Alabama,  Arkansas,  Connecticut,  Illinois,  Kentucky,  Maine, 
Maryland,  Massachusetts,  New  Hampshire,  New  Jersey,  North 
Carolina,  Ohio,  Pennsylvania,  Rhode  Island,  Tennessee,  Vermont, 
Virginia,  and  West  Virginia,  the  courts  have  adhered  to  the  doc- 
trines of  the  common  law  as  regards  the  nature  of  the  mortgage 
interest  and  the  respective  rights  of  the  parties.  They  regard  the 
mortgage  deed  as  passing  at  once  the  legal  title  to  the  mortgagee, 
subject  to  defeasance,  as  a  condition  subsequent  which  divests  or 
defeats  the  estate  on  performance  of  it.     The  right  of  possession 

1  2  Minor's  Institutes,  300-330  ;  Faulk-  6  Hennesy  v.  Farrell,  20  Wis.  42  ;  Tall- 
ner  v.  Broekenbiough,  4  Rand.  (Va.)  245.     man  v.  Ely,  6  Wis.  244;    Gillett  v.  Ea- 

2  Wood  V.  Trask,  7  Wis.  566.  ton,  6  Wis.  30 ;  and  see  Eladland  v.  Dela- 

3  Rev.  Stat.  1871,  p.  1671.  plaine,  19   Wis.  459;  Avery  v.  Judd,  21 
*  Wood  V.  Trask,  stipra.  Wis.  262. 

36 


IN   THE   DIFFERENT   STATES.  [§  59. 

follows  the  title  so  that  the  mortgagee  may  enter  into  possession 
of  the  mortgaged  property  immediately  unless  restrained  by  ex- 
press provision,  or  necessary  implication  of  the  mortgage  ;  and  in 
any  case  upon  breach  of  the  condition  he  becomes  entitled  to  the 
possession  and  may  recover  it  by  action. 

In  Delaware,  Mississippi,  and  Missouri  the  common  law  doc- 
trine is  so  far  modified,  that  until  a  breach  of  the  condition  and 
possession  taken  the  mortgagor  is  regarded  as  the  owner  of  the 
legal  estate,  not  only  as  against  third  persons,  but  as  against  the 
mortgagee  himself.  But  upon  a  forfeiture  and  entry  of  the  mort- 
gagee, he  is  regarded  as  having  the  legal  title  for  the  purpose  of 
enforcing  his  demand  and  obtaining  satisfaction  out  of  the  prop- 
erty. 

In  other  states  the  common  law  doctrine  upon  this  subject  has 
been  wholly  abrogated  by  statute,  and  both  at  law  and  in  equity, 
and  both  before  and  after  a  breach  of  the  condition,  a  mortgage  is 
regarded  as  merely  a  lien  upon  the  propert3\  It  passes  no  title 
or  estate  in  it  to  the  mortgagee,  and  gives  him  no  right  of  posses- 
sion before  foreclosure. 

This  is  the  doctrine  of  mortgages  in  California,  Dakota  Terri- 
tory, Florida,  Georgia,  Indiana,  Iowa,  Kansas,  Louisiana,  Michi- 
gan, Minnesota,  Nebraska,  Nevada,  New  York,  Oregon,  South 
Carolina,  Texas,  Utah  Territory,  and  Wisconsin.  In  Iowa, 
Kansas,  and  Nevada  the  statutes  imply  that  the  parties  may  by 
express  stipulation  give  the  right  of  possession  to  the  mortgagee. 

69.  Grouping  the  states  geographically  it  will  be  noticed, 
that  the  English  doctrine  of  the  nature  of  mortgages,  with  slight 
modifications,  prevails  east  of  the  Mississippi  River  everywhere, 
excepting  New  York  alone  in  the  north  ;  a  group  of  three  states, 
Indiana,  Michigan,  and  Wisconsin,  in  the  west ;  and  a  group  of 
three  states.  South  Carolina,  Georgia,  and  Florida,  in  the  south ; 
while  west  of  the  Mississippi,  excepting  only  the  states  of  Mis- 
souri and  Arkansas,  the  doctrine  everywhere  prevails  that  a  mort- 
gage passes  no  estate  or  right  of  possession.  This  change  from  the 
common  law  rule  may  be  traced  to  two  sources  :  to  the  views  of 
the  early  jurists  of  New  York,  who  adopted  and  carried  to  logical 
conclusions  the  opinions  of  Lord  Mansfield  ;  and  to  the  civil  law  ^ 

1  "In  the  Roman  law  there  were  two  for  debts;  namely  the  pigtiiis  and  the  %- 
sorts  of  transfers  of  property,  as  security    poiheca.     The  pignus,  or  pledge,  was  when 

37 


59.] 


THE   NATURE   OF   A   MORTGAGE. 


established  in  Louisiana,  under  which  a  mortgage  is  merely  a 
pledge,  giving  no  right  of  possession.  The  influence  of  the  civil 
lavsr  is  particularly  seen  in  the  codes  of  the  states  and  territories 
beyond  the  Mississippi.  As  to  the  nature  of  a  mortgage,  the 
civil  law  doctrine,  and  what  may  be  called  the  equitable  doctrine 
adopted  in  New  York  and  the  other  states  mentioned,  are  practi- 
cally and  essentially  the  same.^ 


anything  was  pledged  as  a  security  for 
money  lent  and  the  possession  thereof  was 
passed  to  the  creditor,  upon  the  condition 
of  returning  it  to  the  owner  when  the  debt 
was  paid.  The  hypotheca  was  where  the 
thing  pledged  was  not  delivered  to  the 
creditor,  but  remained  in  the  possession  of 
the   debtor."     2  Story  Eq.  Jur.  §  1005. 

"  In  the  Roman  law,  it  seems  that  the 
word  pigmis  was  often  used  indiscrimi- 
nately to  describe  both  species  of  securi- 
ties, whether  applied  to  movables  or  im- 
movables, ....  so  that  it  answered 
very  nearly  to  the  corresponding  terra 
pledge  in  the  common  law,  which,  although 
sometimes  used  in  a  general  sense  to  in- 
clude mortgages  of  land,  is,  in  the  stricter 
sense,  confined  to  the  pawn  and  deposit  of 
personal  property.  In  the  Roman  law, 
however,  there  was  generally  no  substan- 
tial difference  in  the  nature  and  extent  of 
the  rights  and  remedies  of  the  parties,  be- 

38 


tween  movables  and  immovables,  whether 
pledged  or  hypothecated."  2  Story  Eq. 
Jur.  §  1006. 

^  Mortgages  which  do  not  pass  any  legal 
interest  or  title  to  the  mortgagee  are  de- 
nominated equitable  mortgages.  Such 
mortgnges  may  arise  either  from  the  fact 
that  the  mortgagor  has  no  legal  title  to 
the  property,  and  therefore  can  convey 
none,  or  from  the  fact  that  the  instrument 
creating  the  mortgage  does  not  make  a 
complete  legal  transfer  of  the  property. 

Of  the  former  class  are  mortgages  of  an 
equity  of  redemption  executed  in  a  formal 
manner.  The  legal  estate,  according  to 
the  English  doctrine  of  mortgages,  which 
also  prevails  in  a  large  portion  of  the 
United  States,  has  already  passed  to  the 
first  mortgagee,  so  that  the  mortgagor  can 
only  transfer  an  equitable  interest  to  a 
subsequent  mortgagee. 


CHAPTER   11. 

FORM  AND  REQUISITES   OF  A  MORTGAGE. 

1.   The  Form  Generally. 

60.  No  particular  form  is  necessary  to  constitute  a  mortgage.^ 
It  must  clearly  indicate  the  creation  of  a  lien,  specify  the  debt  to 
secure  which  it  is  given,  and  upon  the  satisfaction  of  which  the 
lien  is  to  be  discharged,  and  the  property  upon  which  it  is  to  take 
effect.  Fulfilling  these  conditions,  it  is  immaterial  that  the  mort- 
gage should  be  embraced  in  one  instrument.  As  will  be  else- 
where noticed,  a  mortgage  is  frequently  made  by  an  absolute  deed 
with  a  separate  defeasance  executed  by  the  grantee  ;  and  an  ab- 
solute deed  with  a  defeasance  resting  in  parol  may  be  a  mortgage 
also.  In  this  chapter,  however,  it  is  proposed  to  treat  of  the  form 
and  requisites  of  a  formal  legal  mortgage,  or  deed  of  trust. 

The  term  "  mortgage  "  has  a  technical  signification  at  law,  and 
is  descriptive  of  an  instrument  having  all  the  requisites  necessary 
to  establish  it  in  a  court  of  law,  as  distinguished  from  that  which 
may  be  so  regarded  in  a  court  of  equity .^  A  mortgage  which 
only  a  court  of  equity  will  recognize  is  properly  designated  an 
"equitable  mortgage." 

A  formal  mortgage  differs  from  a  warranty  deed  in  a  condition 
added,  that  if  the  grantor  pay  a  certain  sum  of  money,  or  perform 
other  obligations  named,  then  it  shall  be  void.^     Other  things  be- 

1  Georgia  Code,  1873,  §  1955;  Burn-  Know  all  Men  by  these  Presents, 
side  V.  Terry,  45  Geo.  621  ;  De  Leon  v.  that  ,  in  consideration  of 
Higuera,  15  Cal.  483;  Woodworth  v.  ,  paid  by  ,  the  receipt 
Guzman,  1  Cal.  203;  Baldwin  v.  Jenkins,  whereof  is  hereby  acknowledged,  do  hereby 
23  Miss.  206  ;  Mason  v.  Moody,  26  Miss,  give,  grant,  bargain,  sell,  and  convey  unto 
184.  the  said                        [here  follows  descrip- 

2  Walton  V.  Cody,  1  Wis.  420.  tion].     To  have  and    to  hold  the  granted 

3  The  following  is  a  common  form  of  premises,  with  all  the  privileges  and  ap- 
a  power  of  sale  mortgage  used  in  Mas-  purtenances  thereto  belonging,  to  the  said 
8ACHUSETTS  and  other  New  England  and  heirs  and  assigns, 
states : to  their  own  use  and  behoof  forever. 

39 


§60.] 


FORM   AND   REQUISITES   OF  A   MORTGAGE. 


sides  the  payment  of  the  principal  sum  of  money  are  usually  made 
part  of  the  condition,  as  for  instance  the  payment  of  interest,  the 


And  hereby  for  and 

heirs,  executors,  and  administrators,  cov- 
enant with  the  grantee  and  heirs 
and  assif;;ns  that  lawfully  seised 
in  fee  simple  of  the  granted  premises,  that 
they  are  free  from  all  incumbrances, 
that  have  good  right  to 
sell  and  convey  the  same  as  aforesaid ; 
and  that  will,  and  heirs, 
executors,  and  administrators,  shall  war- 
rant and  defend  the  same  to  the  grantee 
and  heirs  and  assigns  forever  against 
the  lawful  claims  and  demands  of  all  per- 
sons 

Provided,  nevertheless,  that  if 
or  heirs,  executors,  administrators, 

or  assigns,  shall  pay  unto  the  grantee  ,  or 
executors,  administrators,  or  as- 
signs the  sum  of  in  years 
from  this  date,  with  interest  semi-annually 
at  the  rate  of  per  cent,  per  annum, 
and  until  such  payment  shall  pay  all  taxes 
and  assessments  on  the  granted  premises  ; 
shall  keep  the  buildings  thereon  insured 
against  fire  in  a  sum  not  less  than 
dollars,  for  the  benefit  of  the  grantee  , 
and  executors,  administrators,  and 
assigns,  at  such  insurance  office  as- they 
shall  ajiprove,  and  shall  not  commit  or 
suifer  any  strip  or  waste  of  the  granted 
premises,  or  any  breach  of  any  covenant 
herein  contained,  then  this  deed,  as  also 
note  of  even  date  herewith,  signed 
by  ,  whereby  promise  to  pay 
to  the  grantee  or  order  the  said  sum 
and  interest  at  the  times  aforesaid,  shall 
be  void. 

But  upon  any  default  in  the  perform- 
ance or  observance  of  the  foregoing  condi- 
tion, the  grantee  ,  or  executors, 
administrators,  or  assigns,  may  sell  the 
granted  ])remises,  or  such  portion  thereof 
as  may  remain  subject  to  this  mortgage 
in  case  of  any  partial  release  hereof,  to- 
gether with  all  improvements  that  may  be 
thereon,  at  public  auction  in  said  , 
first  publishing  a  notice  of  the  time  and 
place  of  sale  once  each  week  for  three  sue- 

40 


cessive  weeks  in  one  or  more  newspapers 
published  in  said  ,  and  may  convey 

the  same  by  proper  deed  or  deeds  to  the 
purchaser  or  purchasers  absolutely  and  in 
fee  simple ;  and  such  sale  shall  forever 
bar  and  all  persons  claiming  under 

from  all  right  and  interest  in  the 
granted  premises,  whether  at  law  or  in 
equity.  And  out  of  the  money  arising 
from  such  sale  the  grantee  or 
representatives  shall  be  entitled  to  retain 
all  sums  then  secured  by  this  deed,  whether 
then  or  thereafter  payable,  including  all 
costs,  charges,  and  expenses  incurred  or 
sustained  by  reason  of  any  failure  or  de- 
fault on  the  part  of  or  of 
representatives  to  perform  and  fulfil  the 
condition  of  this  deed,  rendering  the  sur- 
plus, if  any,  to  or  heirs  or 
assigns. 

And  it  Is  agreed  that  the  grantee  ,  or 
executors,  administrators,  or  as- 
signs, or  any  person  or  persons  in  their 
behalf,  may  purchase  at  any  sale  made  as 
aforesaid,  and  that  no  other  purchaser 
shall  be  answerable  for  the  application  of 
the  purchase  money ;  and  that,  until  de- 
fault in  the  performance  of  the  condition 
of  this  deed,  and  heirs  and 

assigns  may  hold  and  enjoy  the  granted 
premises  and  receive  the  rents  and  profits 
thereof 

And  for  the  consideration  aforesaid 
do   hereby  release  unto  the  grantee  and 
heirs  and  assigns  all  right  of  or  to 
both  dower  and  homestead  in  the  granted 
premises. 

In   witness  whereof  the    said 

hereunto   set  hand    and 

seal     this  day  of  in  the 

year  one    thousand   eight  hundred    and 
seventy- 
Signed,  sealed,  and  delivered 
in  presence  of 

)   (Seal) 


(Seal) 


THE   FORM   GENERALLY. 


[§  61. 


taxes  upon  the  premises,  and  insurance  upon  any  buildings  there 
ma}'  be  upon  the  land,  together  with  a  covenant  against  making 
or  suffering  waste. 

The  morto-ase  in  some  states  usually  contains  also  a  power  au- 
thorizing  the  mortgagee  to  sell  upon  the  happening  of  any  breach 
of  the  condition ;  but  this  is  not  an  essential  requisite  of  a  mort- 
gage, and  will  be  treated  of  elsewhere. 

61.  Statutory  forms.  —  The  form  of  the  granting  part  of  the 
deed  as  well  as  the  condition  differs  much  in  different  parts  of  the 
country.  In  some  states  statutes  have  been  enacted  by  which  deeds 
and  mortgages  are  reduced  to  the  shortest  possible  forms  ;  and  stat- 
utory forms  are  given  in  some  states,  which  are  declared  to  be  good 
and  effectual.!     All  that  is  requisite  to  a  good  deed  or  mortgage 


COMSIONWEALTH    OF    ^MASSACHUSETTS. 

ss.  187  .     Then   per- 

sonally appeared  the  above  named 

,  and  ackiiowledi^ed  the  forepoing 
instrument  to  be  free  act  and  deed, 

before  me 


,  and  all  these  presents  shall  be 
void  if  such  payment  be  made  (according 
to  the  tenor  and  effect  thereof).  But  in 
case  default  be  made  in  the  payment  of 
the  principal  or  interest,  as  provided, 
then  the  said  party  of  the  second  part,  his 
executors,  administrators,  and  assigns,  are 

• hereby   empowered  to  sell  tlie  said  prera- 

Justice  of  the  Peace.         jggg^  -^ith   all   and  every  of  the  appurte- 
Form  of  mortgage  in  use  in  Califok-    nances,  or  any  part  thereof,  in   the  man- 
NiA  :  —  ner   prescribed    by   law,   and,   out   of  the 

This  indenture,  made  the  day     money  arising  from  such  sale,   to  retain 

of  ,  in  the  year  of  our  Lord  one     the  said  principal   and    interest,  together 

thousand  eight  hundred  and  seventy-  ,  with  the  costs  and  charges  of  making  such 
between  ,   party  of  the  first  part,     sale,  and  per  cent,  for  attorney's  fees, 

and  ,  the  party  of  the  second  part,     and  the  overplus,  if  any  there  be,  shall  be 

Witnesseth :  That  the  said  party  of  the  paid  by  the  party  making  such  sale,  on 
first  part,  for  and  in  consideration  of  the  demand,  to  the  said  party  of  the  first  part, 
sum  of  dollars,         of  the  United     his  heirs  or  assigns. 

States  of  America,  to  him  in  hand  paid.         In    witness  whereof  the   said  party  of 
does  by  these  presents  grant,  bargain,  sell,     the  first  part  hath  hereunto  set  his  hand 
and   convey,   and  confirm   unto   the  said     and  seal,  the   day   and   year   first  above 
party  of  the  second  part,  and  to  his  heirs     written, 
and  assigns  forever,  all  that  certain  piece     Signed,  sealed,  and  delivered 
or  parcel  of  land  situate  in  the  ,  in  the  presence  of 

County  of  ,   State  of  , 

bounded  and  described  as  follows :  .^ .   j  

[here   give   description    of   property],    to-     ^ } 

gether  with   all    and   singular    the    tene-      '         )  

ments,  hereditaments,  and  appurtenances 

thereto  belonging,  or  in  anywi.se  apper-  ^  The  following  statutory  forms  show 
taining.  This  conveyance  is  intended  as  how  brief  and  simple  a  form  contains  all 
a  mortgage   to   secure    the    payment    of    the   requisites  of  a  mortgage.     In  these 

41 


.(Seal) 
.(Seal) 


§61.] 


FORM   AND   REQUISITES   OF   A   MORTGAGE, 


may  be  expressed  in  a  very  few  words.     As  remarked  by  Lord 
Coke,  if  a  deed  of  feoffment  be  without  premises,  habendum,  te- 


same  states  more  elaborate  forms  are  in 
general  use. 

In  Indiana  a  mortgage  may  be  made  in 
substance  as  follows  :  "  A.  B.  mortgages 
and  warrants  to  C.  D.  [here  describe  the 
premises],  to  secure  the  repayment  of" 
[here  recite  the  sum  for  which  the  mortgage 
is  granted,  or  the  notes  or  other  evidences 
of  debt,  or  a  description  thereof  sought 
to  be  secured,  also  the  date  of  repayment]. 

Such  a  mortgage  being  dated  and  duly 
signed,  sealed,  and  acknowledged  by  the 
grantor  is  deemed  and  held  to  be  a  good 
and  suflicient  mortgage  to  the  grantee,  his 
heirs,  assigns,  executors,  and  administra- 
tors, with  warranty  from  the  grantor  and 
his  legal  representatives  of  perfect  title 
in  the  grantor,  and  against  all  previous 
incumbrances.  If  in  the  above  form  the 
words,  and  warrant,  be  omitted,  the  mort- 
gage is  good,  but  without  warranty. 
Gavin  &  Hord's  Stat,  of  Ind   260. 

In  Iowa  it  is  provided  that  the  following 
or  other  equivalent  form  is  sufficient  for  a 
mortgage.     Code  1873,  p.  363  :  — 

"  For  the  consideration  of  dol- 

lars I  hereby  convey  to  A.  B.  the  follow- 
ing tract  of  land  [describing  it],  to  be  void 
upon  conditions  that  I  pay,"  &c. 

Missouri,  Wagner's  Stats.  (1870)  p. 
1416  :  "Know  all  men  by  these  presents, 
that  ,  of  the  County  of  , 

in  the  State  of  Missouri,  have  this  day, 
for  and  in  consideration  of  the  sum  of 
dollars,  to  in  hand  paid, 

by  ,  of  the  County  of  ,  in 

the  State  of  ,  granted,  bargained, 

and  sold,  and  by  these  presents  do  grant, 
bargain,  and  sell  unto  the  said  , 

the  following  described  tracts  or  parcels 
of  land,  situate  in  the  County  of  , 

in  the  State  of  Missouri ;  that  is  to  say 
[here  describe  the  land].  To  have  and  to 
hold  the  premises  hereby  conveyed,  with 
all  the  rights,  privileges,  and  appurte- 
nances thereto  belonging,  or  in  anywise 
appertaining  unto  the   said  ,  his 

heirs  and  assigns,  forever,  upon  the  express 

42 


condition  :  Whereas  the  said  ,  on 

the  day  of  ,18      (or  ha8 

this  day),  made,  executed,  and  delivered 
to  the  said  ,  his  certain  promissory 

note,  in  the  words  and  figures  following, 
to  wit :  [here  copy  the  note  ;  ]  now  if  the 
said  ,  his  executor  or  administra- 

tor, shall  pay  the  sum  of  money  specified 
in  said  note,  and  all  interest  that  may  be 
due  thereon,  according  to  the  tenor  of 
said  note,  then  this  conveyance  shall  be 
void  ;  otherwise  it  shall  remain  in  full 
force  and  virtue  in  law. 

"  And  the  said  ,  or  his  executor 

or  administrator,  may  proceed  to  sell  the 
property  hereinbefore  described,  or  any 
part  thereof,  at  public  vendue,  to  the  high- 
est bidder,  at  ,  in  the  County  of 
,  for  cash  in  hand,  first  giving 
days'  public  notice  of  the  time, 
terms,  and  place  of  sale,  and  the  property 
to  be  sold,  by  advertisements  (in  some 
newspaper  printed  or  circulated  in  the 
county  where  the  premises  are  situate,  or 
any  other  mode  of  advertisement  agreed 
upon  by  the  parties) ;  and  upon  such  sale, 
and  the  payment  of  the  purchase  money, 
shall  execute  and  deliver  a  conveyance  of 
the  property  so  sold  to  the  purchaser 
thereof;  and  any  statement  of  facts,  or 
recital  by  the  said  ,  in  such  con- 
veyance in  relation  to  the  advertisement, 
sale,  receipt  of  the  purchase  money,  or 
execution  of  such  conveyance  shall  be  re- 
ceived as  prima  facie  evidence  of  the  truth 
thereof.  And  the  said  shall,  with 
the  proceeds  of  the  sale  aforesaid,  pay, 
first,  the  expenses  of  this  trust,  and  next, 
whatever  may  be  in  arrear  and  unpaid  on 
said  note,  whether  for  principal  or  inter- 
est ;  and  the  balance  (if  any)  shall  be  paid 
over  to  the  said  or  his  legal  rep- 
resentatives. 

"  In  witness  whereof,"  &c. 

In  California,  by  Civil  Code,  1872,  § 
2948,  a  mortgage  of  real  property  may 
be  made  in  substantially  the  following 
form  :  — 


THE  FORM   GENERALLY. 


[§61. 


nendum^  reddendum,  clause  of  warranty,  &c.,  it  is  still  a  good  deed. 
"  For  if  a  man  by  deed  give  land  to  another  and  to  his  heirs  with- 


"  This  mortgage,  made  the  day 

of  ,  in  the  year  ,  by  A.  B., 

of  ,  mortgagor,  to  C.  D.,  of  , 

mortgagee,  witnesseth  : 

"  That  the  mortgagor  mortgages  to  the 
mortgagee  [here  describe  the  property],  as 
security  for  the  payment  to  him  of 
dollars,  on  (or  before)  the  day  of 

,  in  the  year  ,  with  inter- 

est thereon  (or  as  security  for  the  payment 
of  an  obligation,  describing  it,  &c.). 

"A.  B." 

In  Martlaxd,  the  following  form  of 
mortgage  is  given,  Code,  1860,  p.  143  :  — 

"  This  mortgage,  made  this  day 

of  ,  by  me  ,  witnesseth,  that 

in  consideration  of  the  sum  of  dol- 

lars now  due  from  me,  the  said  , 

to  ,  I,  the  said  ,  do  grant 

unto   the  said  [here  describe  the 

property].     Provided,   that  if  I,   the  said 

,  shall  pay  on  or  before  the 
day  of  to  the  said  ,  the 

sum  of  dollars,  with  the  interest 

thereon  from  ,  then  this  mortgage 

shall  be  void, 

"  Witness  my  hand  and  seal.      (Seal.)  " 

In  Tennessee  the  statute  form  of  mort- 
gage is  as  follows.  Code,  185S,  §  2013  :  — 

"  I  hereby  convey  to  A.  B.  the  following 
land  [describing  it],  to  be  void  upon  con- 
dition that  I  pay,"  &c. 

For  a  deed  of  trust : — 

"For  the  purpose  of  securing  to  A.  B. 
a  note  of  this  date,  due  at  twelve  months, 
with  interest  from  date  (or  as  the  case  may 
be),  I  hereby  convey  to  C.  D.  in  trust,  the 
following  property  [describing  it].  And 
if  the  note  is  not  paid  at  maturity,  I 
hereby  authorize  C.  D.  to  sell  the  property 
herein  conveyed  (stating  the  manner,  place 
of  sale,  notice,  &c.),  to  execute  a  deed 
to  the  purchaser,  to  pay  off  the  amount 
herein  secured,  with  interest  and  costs, 
and  to  hold  the  remainder  subject  to  my 
order." 

In   Dakota  Territory  the  forms  of 


mortgages  given   by  statute  are   as   fol- 
lows :  — 

"  This  mortgage,  made  the  day 

of  ,  in  the  year  ,  between 

A.  B.,  of  ,  of  the  first  part,  and 

C.    D.,    of  ,  of   the   second  part, 

witnesseth : 

I.  That  in  consideration  of  dol- 

lars, now  received,  the  party  of  the  first 
part  hereby  mortgages  to  the  party  of  the 
second  part  [here  describe  the  property], 
as  security  for  the  payment  to  him  of 
dollars,  on  the  day  of 

,18  ,  with  interest  thereon  (or 
as  security  for  the  payment  of  a  bond,  de- 
scribing it). 

(If  a  power  of  sale  is  to  be  given 
add) :  II.  That  in  case  of  the  non-pay- 
ment of  the  principal  sum,  or  of  any 
part  of  the  interest  thereon,  when  due,  the 
party  of  the  second  part  may  enter  upon 
and  sell  the  property  above  described,  in 
the  manner  prescribi'd  by  the  Civil  Code, 
and  the  Code  of  Civil  Procedure  of  this 
territory,  and  ajjply  the  proceeds  of  such 
sale  to  the  satisfaction  of  the  amount  due 
under  this  mortgage,  and  the  expenses  of 
sale ;  and  the  residue  to  be  forthwith  paid 
to  the  party  of  the  first  part. 

(If  the  interest  clause  is  to  be  inserted, 
add):  III.  That  if  the  interest  upon  the 
principal  sum  mentioned  is  not  fully  paid 
as  it  falls  due,  the  entire  principal  shall 
become  immediately  due  and  payable,  at 
the  option  of  the  party  of  the  second  part. 

(If  the  insurance  clause  is  to  be  inserted, 
add)  :  IV.  That  the  party  of  the  first  part 
shall,  at  his  own  expense,  keep  the  build- 
ings on  the  said  property  insured  against 
fire,  in  a  reputable  insurance  office,  for  the 
benefit  of  the  party  of  the  second  part, 
to  the  extent  of  dollars,  until  this 

mortgage    is    paid    or    otherwise    extin- 
guished. 

"  Witness  the  hand  and  seal  of  the  party 
of  the  first  part.  A.  B.  (Seal) 

"  Sealed  and  delivered  in  presence  of 
"  E.  F." 

43 


§  62.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

out  more  saying,  tins  is  good,  if  he  put  his  seal  to  the  deed,  de- 
liver it,  and  make  livery  accordingly."  Chancellor  Kent  gives  a 
very  brief  form  of  a  deed,  but  he  adds:  "But  persons  usually 
attach  so  much  importance  to  the  solemnit}'^  of  forms,  which  be- 
speak care  and  reflection,  and  they  feel  such  deep  solicitude  in 
matters  that  concern  their  valuable  interests,  to  make  '  assurance 
double  sure,'  that  generally,  in  important  cases,  the  purchaser 
would  rather  be  at  the  expense  of  exchanging  a  paper  of  such 
insignificance  of  appearance  for  a  conveyance  surrounded  by  the 
usual  outworks,  and  securing  respect  and  checking  attacks  by  the 
formality  of  its  manner,  the  prolixity  of  its  provisions,  and  the 
usual  redundancy  of  its  language."  ^ 

By  statute  the  legal  tenor  and  effect  of  the  different  covenants 
may  be,  and  in  some  states  are,  obtained  simply  by  naming  them 
without  repeating  the  covenants  themselves.  In  like  manner  the 
full  effect  of  a  power  of  sale  may  be  had  by  simple  reference  in  the 
mortgage  to  a  statutory  power,^  instead  of  cumbering  the  record 
with  the  elaborate  powers  now  in  use.  Attempts  by  legislation  to 
bring  about  simplicity  and  brevity  in  legal  forms  have  not  always 
been  successful ;  but  much  has  been  accomplished  in  this  direction 
in  some  of  the  American  States,  making  a  practical  return  through 
this  means  to  the  simplicity  of  the  ancient  Saxons,  who,  "in  their 
deeds  observed  no  set  form,  but  used  honest  and  perspicuous  words 
to  express  the  things  intended  with  all  brevity,  yet  not  wanting  the 
essential  parts  of  the  deed  ;  as  the  names  of  the  donor  and  donee ; 
the  consideration ;  the  certainty  of  the  thing  given ;  the  limitation 
of  the  estate  ;  the  reservation,  and  the  names  of  the  witnesses."  ^ 

62.  A  deed  of  trust  to  secure  a  debt  is  in  legal  effect  a  mort- 
gage.* It  is  a  conveyance  made  to  a  person  other  than  the  creditor, 
conditioned  to  be  void  if  the  debt  be  paid  at  a  certain  time,  but 

1  4  Kent  Com.  461.     He  says  : —  scribe  it].     Witness  my  hand  and  seal," 

"  I  apjjrehend  that  a  deed  would  be  per-  &c. 

fectly  competent,  in  any  part  of  the  United  2  ggg  chapters  xxxix,  xl. 

States,  to  convey  the  fee,  if  it  was  to  be  ^  Sir    Henry     Spellman's   Works,    by 

to  the  following  effect :  I,  A.  B.,  in  con-  Bishop  Gibson,  p.  234. 

sideration  of  one  dollar  to  me  paid  by  C.  *  Eaton   v.    Whiting,   3    Pick.   (Mass.) 

D,,  do  bargain  and  sell  (or,  in  New  York,  484;    Woodruff  v.  Robb,   19    Ohio,   212; 

grant),  to   C.  D.  and  his  heirs  (in  New  Sargent  y.  Howe,  21  111.  148;  Newman  v. 

York,  Virginia,  &c.,  the  words,  and  his  Samuels,  17  Iowa,  528,  535  ;  Lawrence  v. 

heirs,  may  be  omitted)  the  lot  of  land  [de-  Farmers',  &c.   Trust  Co.  13  N.  Y.   200; 

Palmer  v.  Gurnsey,  7  Wend.  (N.  Y.)  248. 

44 


THE   FORM   GENERALLY.  [§  62. 

if  not  paid  that  the  grantee  may  sell  the  hind  and  apply  the  pro- 
ceeds to  the  extinguishment  of  the  debt,  and  pay  over  the  surplus 
to  the  grantor.  The  addition  of  the  power  of  sale  does  not  change 
the  character  of  the  instrument  any  more  than  it  does  when 
contained  in  a  mortgage. ^  Such  a  deed  has  all  the  essential  ele- 
ments of  a  mortgage ;  it  is  a  conveyance  of  land  as  security  for 
a  debt.  It  passes  the  legal  title  to  the  grantee  just  as  a  mortgage 
does,  except  in  those  states  where  the  natural  effect  of  a  convey- 
ance is  controlled  by  statute  ;  and  in  those  states,  as  a  general  rule, 
it  is  considered  merely  as  a  security,  and  not  a  conveyance,  just  as 
a  mortgage  is  considered.^  Both  instruments  convey  a  defeasible 
title  only  ;  and  the  right  to  redeem  is  the  same  in  one  case  as  it  is 
in  the  other.  The  only  important  difference  between  them  is, 
that  in  the  one  case  the  conveyance  is  directly  to  the  creditor, 
while  in  the  other  it  is  to  a  third  person  for  his  benefit. 

In  Wisconsin,  howevei',  in  consequence  of  a  statute  abolishing 
uses  and  trusts,  except  for  certain  purposes,  a  deed  to  a  trustee 
conditioned  that  if  the  grantor  does  not  pay  a  debt  due  from  him 
to  a  third  party,  then  the  trustee  shall  advertise  and  sell  the 
lands,  pay  the  debt,  and  return  the  surplus  money  to  the  grantor, 
does  not  constitute  a  mortgage.  The  trustee  is  the  mere  agent  of 
both  parties,  and  such  a  trust  being  prohibited  by  the  statute,  the 
legal  title  remains  in  the  grantor.^ 

Again,  there  is  a  well  settled  distinction  between  a  deed  of 
trust  and  a  deed  of  trust  in  the  nature  of  a  mortgage  ;  the  one 
being  for  the  trust  purposes  unconditional  and  indefeasible,  while 
the  other  is  conditional  and  defeasible,  in  the  same  way  that  a 
mortgage  is.*  The  term  deed  of  trust,  as  used  in  this  treatise, 
has  reference  always  to  a  conveyance  in  the  nature  of  a  mortgage. 
"  A  deed  conveying  land  to  a  trustee  as  mere  collateral  security 
for  the  payment  of  a  debt,  with  the  condition  that  it  shall  become 
void  on  the  payment  of  the  debt  when  due,  and  with  power  to  the 
trustee  to  sell  the  land  and  pay  the  debt  in  case  of  default  on  the 
part  of  the  debtor,  is  a  deed  of  trust  in  the  nature  of  a  mortgage. 
By  an  absolute  deed  of  trust,  the  grantor  parts  absolutely  with  the 
title,  which  rests  in  the  grantee  unconditionally,  for  the  purpose 
of  the  trust.  The  latter  is  a  conveyance  to  a  trustee  for  the  pur- 
pose of  raising  a  fund  to  pay  debts  ;  while  the  former  is  a  convey- 

1  Eaton  V.  Whitney,  supra;  Newman  v.        ^  Marvin  i*.  Titsworth,  10  Wis.  320. 
Samuels,  supra.  *  Hoffman  v.  Mackall,  5  Ohio  St.  124. 

*  Lenox  v.  Reed,  12  Ivans.  223,  227. 

45 


§  63.]  FORM   AND   REQUISITES   OF  A   MORTGAGE.  . 

ance  in  trust  for  the  purpose  of  securing  a  debt,  subject  to  a 
condition  of  defeasance."  ^ 

2.    The  Formal  Parts  of  the  Deed. 

63.  Parties  described.  —  It  is  important  that  the  names  of  the 
parties  to  a  deed  should  be  given  accurately  and  fully.  Persons 
accustomed  chiefly  to  commercial  transactions  and  forms  some- 
times neglect  to  observe  this  requirement,  and  use  the  initial  only 
of  the  Cliristian  name,  and  thereby  needlessly  introduce  a  new 
element  of  confusion  and  uncertainty  into  the  record  title.  Parol 
evidence  is  admissible  to  show  who  was  really  intended  as  the 
grantee  in  a  deed  when  the  name  is  claimed  to  be  erroneous,  and 
there  is  a  person  of  the  name  used  in  the  deed.^  It  is  not  abso- 
lutely essential  to  the  validity  of  a  mortgage  that  a  mortgagee  be 
described  by  name,  if  there  be  such  other  description  as  will  dis- 
tinguish the  person  intended  from  all  others ;  as,  for  instance, 
when  the  mortgage  is  made  to  the  heirs  at  law  of  a  person  named 
who  has  deceased  ;  ^  but  it  would  be  void  if  made  to  the  heirs  of 
a  person  living,  because  it  is  then  uncertain  who  are  intended  to 
have  the  benefit  of  the  mortgage.* 

But  a  mortgage  ''  to  the  trustees  "  of  an  unincorporated  associa- 
tion or  society  is  good,  although  the  trustees  be  not  named.^  It 
is  sufficient  if  they  are  so  clearly  described  as  to  distinguish  them 
from  all  others,  so  that  there  can  be  no  uncertainty  in  the  grant. 

A  mortgage  to  a  corporation  by  a  name  to  which  it  was  contem- 
plated at  the  time  to  change  the  existing  name  of  the  company,  is 
valid,  if  made  to  the  corporation  intended  and  it  was  then  existing. 
In  a  proceeding  upon  the  mortgage  it  should  be  averred  that  the 
mortgage  was  made  to  the  company  by  the  name  used,  it  being 
then  known  by  that  name,  as  well  as  by  the  name  it  was  legally 
entitled  to.^ 

1  Per  Bartley,  J.,  in  Hoffman  v.  Mackall,  gagor,  his  signature  fixes  the  actual  iden- 
supra.  tity  of  the  person. 

2  Thus  a  deed  to  "Hiram  Gowing,"  ^  Shaw  v.  Loud,  12  Mass.  447 ;  and  see 
was  shown  in  this  way  to  be  intended  for  Thomas  v.  Marshfield,  10  Pick.  (Mass. 
"  Hiram  G.  Gowing,"  and  not  for  his  son,  364,  367. 

whose  name  was  "  Hiram  Gowing."   Pea-  *  Hall  y.  Leonard,  1  Pick.  (Mass.)  27, 

body  V.  Brown,  10  Gray  (Mass.),  45  ;  and  30. 

see  Scaiilan  v.  Wright,  13  Pick.  (Mass.)  ^  Lawrence  i-.  Fletcher,  8  Met.  (Mass.) 

523,  5.30.  153,  163. 

As  to  the  name  of  the  grantor  or  mort-  •*  City  Bank  of  Kenosha  v.  McClellan, 


21  Wis.  112. 


46 


THE   FORMAL   PARTS   OF   THE   DEED.  [§§  64,  65. 

The  designation  of  "  junior  "  or  "  second  "  is  no  part  of  a  man's 
name,  and  although  convenient  and  desirable  for  the  purpose  of 
distinguishing  the  party  from  another  person  of  the  same  name, 
it  is  not  essential,  and  the  person  intended  may  be  shown  in  some 
other  way.^  The  description  of  a  person  by  his  occupation  is  an 
addition  of  the  same  character,  though  of  less  importance,  because 
the  terms  used  to  describe  the  occupation  are  so  general  that  they 
serve  but  little  practical  purpose  in  identifying  the  person. 

When  a  party  to  the  mortgage  is  a  woman,  it  is  important,  if 
she  be  married,  to  give  her  husband's  name,  and  if  she  be  not 
married,  to  state  that  she  is  a  "  single  woman  "  or  a  "widow." 

It  is  usual  and  desirable  to  state  the  place  of  residence  of  the 
parties  by  naming  not  merely  the  town  or  city  of  such  residence, 
but  the  county  and  state  as  well. 

64.  Generally  the  consideration  named  in  a  mortgage  is  the 
actual  amount  of  the  debt  secured  by  it.  But  it  is  not  essential 
that  this  should  be  so.  A  nominal  consideration  named  is  suffi- 
cient, and  in  fact  it  is  not  essential  that  any  consideration  at  all 
should  be  expressed.  The  real  consideration  is  the  debt  or  obliga- 
tion which  the  mortgage  is  given  to  secure,  and  upon  that  depends 
the  validity  of  the  mortgage,  so  far  as  the  consideration  is  con- 
cerned.    The  seal  implies  a  consideration. 

The  amount  of  the  debt  secured  is  in  no  way  fixed  or  controlled 
by  the  nominal  consideration.  The  condition  of  the  mortgage  de- 
scribes the  debt  and  fixes  the  amount  of  it  either  specifically  or  in 
general  terms.^  A  mortgage  to  indemnify  against  a  liability,  or  to 
secure  future  advances,  is  generally  of  the  latter  description,  but 
even  in  these  cases  the  nominal  consideration  is  immaterial. 

65.  An  accurate  description  of  the  premises  is  of  great  im- 
portance as  affecting  the  value  of  the  security,  and  oftentimes  af- 
fecting as  well  the  interest  of  the  mortgagor,  and  of  persons 
holding  title  under  him. 

But  a  description,  however  general  and  indefinite  it  may  be,  if 
by  extrinsic  evidence  it  can  be  made  practically  certain  what  prop- 
erty it  was  intended  to  cover,  will  be  sufficient  to  sustain  the  lien.^ 

1  Cobb  V.  Lucas,  15  Pick.   (Mass.)  7;        '  Tucker  v.  Field,  51  Miss.   191;  and 
Kincaid  v.  Howe,  10  Mass.  203.  see  Baker  v.  Bank  of  La.  2  La.  Ann.  371  ; 

2  Miller  v.  Lockwood,  32  N.  Y.  293.  Whitney  v.   Buckman,  13  Cal.  536  ;  De 

47 


§  66.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

Tims  a  mortgage  of  all  the  lots  the  mortgagor  then  owned  in  a  cer- 
tain town,  whether  he  had  the  legal  or  equitable  title  thereto,  con- 
veys all  the  lots  which  can  be  identified  as  belonging  to  him  by 
either  title. ^  But  a  mortgage  of  all  the  lands  the  mortgagor  owns 
in  a  certain  town  does  not  include  lands  held  by  him  in  mortgage, 
though  by  absolute  deed  with  a  separate  defeasance  not  recorded.^ 

A  mortgage  "  of  all  my  estate,"  or  "  of  all  my  lands  wherever 
situated,"  or  "  of  all  my  property,"  is  not  invalid  by  reason  of  the 
generality  of  the  description.'*^ 

When  the  objection  is  merely  to  the  indefiniteness  of  descrip- 
tion, it  does  not  lie  with  the  mortgagor  to  say  that  he  conveyed 
the  property  by  a  description  so  loose  or  indefinite  that  no  title 
could  pass  upon  a  foreclosure  sale  of  the  property.  If  nothing 
passes,  it  is  the  misfortune  of  the  mortgagee,  but  the  mortgagor 
is  not  hurt ;  if  anything  does  pass,  the  mortgagee  is  entitled  to 
the  benefit  of  the  mortgage  as  it  stands.^  When,  however,  the 
description  is  such  that  property  may  pass  or  be  sold  under  the 
mortgage  which  the  mortgagor  did  not  include,  or  intend  to  in- 
clude, it  is  proper  that  he  should  ask  to  have  it  reformed. 

The  mortgagor  cannot  object  to  the  enforcement  of  the  mort- 
gage against  him  personally,  on  the  ground  that  the  description 
of  the  property  was  so  indefinite  as  not  to  pass  any  title."^ 

66.  What  uncertainty  in  description  will  invalidate.  —  The 
description  may  be  so  uncertain  that  no  title  will  vest  in  the  mort- 
gagee by  the  deed,  unless  it  be  reformed.^  A  mortgage  describ- 
ing land  by  township  and  range,  without  stating  in  what  county 
or  state  the  land  was  situated,  was  held  void.'^  And  so  was  a 
mortgage  describing  land  as  parts  of  different  sections,  without 
stating  the  township  or  range.^ 

A  mortgage  of  fifty  acres  of  land  by  description,  the  same 
being  part  of  the  large  farm,  or  the  next  and  adjoining  fifty  acres 
that  is   unincumbered,  provided  the  first  be  incumbered,  is  not 

Leon  V.  Higuera,  15  Cal.  483  ;  Hancock  v.  *  Tryon  v.  Sutton,  13  Cal.  490. 

Watson,  18  Cal.  137  ;  Began  v.  O'Reilly,  5  Whitney  v.  Buckman,  13  Cal.  536. 

32  Cal.  1 1  ;  English  v.  Koche,  6  Ind.  62  ;  6  pgck  v.  Mallams,  10  N.  Y.  509  ;  Keif- 

Blakeniore  v.  Taber,  22  Ind.  466  ;  Morse  fer  v.  Starn,  27  La.  Ann.  282 ;  White  u. 

V.  Dewey,  3  N.  H.  539.  Hyatt,  40  Ind.  385. 

1  Starling  v.  Blair,  4  Bibb  (Ky.),  288.  ^  Cochran  v.  Utt,  42  Ind.  267. 

2  Mills  V.  Shepard,  30  Conn.  98.  8  Bq^j  ^_  EiUg^  ^  lovya,  97. 
"  Wilson  V.  Boycc,  92  U.  S.  320. 

48 


THE   FORMAL   PARTS   OF   THE   DEED.  [§  67. 

void  for  uncertainty  as  to  either  tract.  The  whole  farm  in  such 
case  is  subject  to  the  mortgage,  which  is  to  be  satisfied  out  of 
any  unincumbered  tract,  nearest  to  that  first  described  ;  but  the 
mortgage  is  not  defeated  although  the  whole  farm  be  incumbered.^ 
A  mortgage  which  does  not  name  the  town,  county,  or  state  in 
which  the  land  is  situated  may  nevertheless  be  rendered  certain 
in  the  description  of  the  premises  by  a  reference  to  another  deed, 
which  contains  a  full  and  accurate  description  ;  ^  or  to  the  land  of 
the  adjacent  owners.^  A  mistake  in  the  number  of  a  lot  may 
be  rendered  immaterial  by  the  boundaries,  which  will  control 
when  fixed  and  certain,  as  for  instance,  when  they  are  public 
streets.^ 

67.  The  office  of  the  habendum  is  to  define  the  estate  con- 
veyed ;  to  explain  how  long  the  grantee  is  to  hold  it,  and  whether 
in  an  absolute  or  qualified  manner.  To  create  an  absolute  and 
unqualified  estate  in  the  grantee  the  habendum  must  be  to  the 
grantee  and  his  heirs. 

A  mortgage  to  one,  "his  executors,  administrators,  and  assigns," 
■without  naming  his  heirs,^  or  a  mortgage  to  an  individual,  "  his 
successors  and  assigns  forever,"  without  the  word  heirs, ^  conveys 
only  a  life  estate ;  and  the  executor  of  the  mortgagee  cannot  main- 
tain a  writ  of  entry  to  foreclose  the  mortgage  because  it  termi- 
nated with  the  mortgagee's  life.  A  power  of  sale  in  such  a  mort- 
gage, authorizing  the  mortgagee  upon  default  to  sell  the  land  and 
execute  a  conveyance  in  fee  simple,  does  not  operate  to  enlarge 
the  estate. 

But  a  mortgage  made  to  a  treasurer  of  a  corporation  named, 
with  habendum  "unto  him  the  said  treasurer  and  his  successors  in 
ofiice,  to  his  and  their  use  and  behoof  forever,"  the  condition  of  the 
mortgage  being  that  the  mortgagor  should  "  pay  to  the  said  treas- 
urer, or  his  successors  in  office,"  a  certain  sum,  was  held  to  pass 
an  estate  in  fee,  on  the  ground  that  these  expressions  in  the  deed 
showed  that  tiie  grantee  took  the  conveyance  simply  as  trustee  for 
the  corporation,  and  that  the  nature  of  the  trust  required  that  a 

1  Lee  V.   Woodworth,  3  N.  J.   Eq.   (2  *  Cooper  y.  Bigly,  13  Mich.  463. 
Green)  36;  and  see  Kruse  ^'.  Scripps,  11  ^  Clearwater  v.  Rose,  1   Bluckf.  (Tnd.) 
111.  98;   Gray  v.  Stiver,  24  Ind.  174.  137. 

2  Robinson  v.  Brennan,  115   Mass.  582.  "  Sedgwick  v.  Laflin,  10  Allen  (Mass.), 

3  Ells  V.  Sims.  2  La.  Ann.  251.  430. 

VOL.  I.  4  49 


§  68.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

fee  should  pass  by  the  deed.^  The  estate  of  the  trustee  must  be 
commensurate  with  the  equitable  estate  of  the  cestui  que  trust. 

A  mortgage  conveying  to  the  mortgagee  an  estate  for  life  only 
will  not  be  reformed  to  convey  a  fee,  as  against  the  rights  of  a 
bond  fide  purchaser  of  the  premises,  without  notice  of  any  claim 
on  his  part  of  a  greater  estate  than  the  mortgage  as  recorded  pur- 
ports to  convey .2  Although  mortgages  of  real  estate  are  usually 
in  fee,  constructive  notice  of  the  existence  merely  of  a  mortgage, 
with  no  notice  as  to  tlie  estate  it  is  intended  to  convey,  is  not 
notice  that  the  mortgage  is  in  fee,  if  its  terms  convey  a  life  estate 
only. 

In  a  mortgage  or  other  conveyance  to  a  corporation  it  is  usual 
to  make  the  habendum  to  it  and  its  "  successors  and  assigns;" 
but  neither  of  these  words  is  necessary  in  a  deed  to  a  corporation 
aggregate  to  give  it  all  the  estate  it  can  take  in  the  land  conveyed. 
There  is  an  implied  condition,  in  every  conveyance  to  a  corpora- 
tion, that  upon  the  civil  death  of  the  corporation  while  retaining 
the  land  it  shall  revert  to  the  original  grantor  and  his  heirs.^ 

68.  The  covenants  of  a  mortgage  are  usually  those  of  a  war- 
ranty deed,  and  have  the  same  effect  and  construction.  If,  how- 
ever, a  mortgage  with  covenants  be  given  for  purchase  money  of 
land  conveyed  to  the  mortgagor  by  a  deed  having  like  covenants, 
and  the  mortgagor  is  evicted,  he  may  recover  damages  in  an  ac- 
tion for  breach  of  the  covenant,  and  the  vendor  who  holds  the 
mortgage  is  not  allowed  to  set  up  the  covenants  in  the  mortgage 
deed  as  a  defence  by  way  of  rebutter,  especially  when  he  holds  the 
plaintiff's  promissory  notes  secured  by  the  mortgage.^  "  Various 
cases  might  be  readily  supposed,"  says  Mr.  Justice  Dewey,  "  when 
such  a  defence  ought  not  to  prevail ;  as  in  cases  of  large  pay- 
ments advanced  towards  the  purchase  money,  and  a  mortgage  to 
secure  only  a  small  residue,  and  that,  by  the  terms  of  the  contract, 
to  be  paid  at  some  remote  future  day.  The  rights  of  the  de- 
fendant may  be  protected  by  postponing  entry  of  judgment  to 
await  the  set-off  upon  the  mortgage  debt."  ^  In  other  words, 
the  covenants  in  the  mortgage  do  not  estop  the  mortgagee  to  re- 

1  Brooks  17.  Jones,  II  Met.  (Mass.)  191.     459  ;  Hubbard  v.  Norton,  10  Conn.  422; 

2  Wilson  V.  King,  27  N.  J.  Eq.  374.  Hayncs  v.  Stevens,  11  N.  H.  28 ;  Smith  v. 
8  2  Kent  Com.  282,  307.  Cannell,  32  Me.  123. 

*  Sumner  v.  Barnard,  12  Met.  (Mass.)        ^  See  Sumner  v.  Barnard,  supra. 

60 


THE   CONDITION.  [§  69. 

cover  upon  those  in  his  vendor's  deed  to  him.  As  between  these 
parties,  the  mortgagor  for  purchase  money  really  pledges  nothing 
but  the  interest  which  he  obtained  under  his  vendor's  deed,  and 
is  answerable  to  him  for  no  imperfection  in  the  title  existing  be- 
fore the  conveyance.  If  the  mortgage  be  redeemed,  that  is  the 
end  of  it ;  and  if  it  be  foreclosed,  the  title  which  the  grantor 
parted  with  is  restored  to  him  by  foreclosure,  or  he  gets  the  full 
benefit  of  it.  One  having  the  mortgagee's  right  after  foreclosure 
is  not  allowed  to  recover  damages  for  a  breach  of  the  covenant 
which  existed  at  the  time  of  the  conveyance  by  the  mortgagee  ; 
for  the  effect  of  such  recovery  would  be,  to  obtain  all  that  he 
parted  with  in  the  conveyance,  and  the  value  of  the  incumbrance, 
which  he  is  relieved  from  removing  by  the  foreclosure. ^ 

The  covenants  of  warranty  in  a  mortgage  are  often  of  impor- 
tance, especially  in  cases  where  the  mortgagor  has  no  title,  or  an 
imperfect  one  at  the  time  of  making  the  mortgage,  but  afterwards 
acquires  one  ;  they  operate  by  way  of  estoppel  or  rebutter  then, 
so  that  the  after  acquired  title  enures  to  the  benefit  of  the  holder 
of  the  mortgage. 

Except  in  this  way  the  ordinary  covenants  are  of  little  use  in 
a  mortgage,  because  the  damages  for  a  breach  of  them  would  only 
entitle  the  holder  of  the  mortgage  to  recover  the  amount  due  him 
on  the  mortgage,  and  this  he  can  more  readily  recover  by  suit 
for  the  mortgage  debt  upon  the  note  or  bond,  or  upon  the  cove- 
nant for  the  payment  of  it  sometimes  contained  in  the  mortgage. 

3.   The  Condition. 

69.  The  usual  words  of  the  proviso  are,  that  upon  the  pay- 
ment of  the  debt  or  performance  of  the  duty  named,  "  then  this 
deed  shall  be  void."  But  any  equivalent  expression  may  be  used ;  ^ 
and  in  fact  if  it  appear  from  the  whole  instrument  that  it  was  in- 
tended as  a  security,  although  there  be  no  express  provision  that 
upon  the  fulfilment  of  the  condition  the  deed  shall  be  void,  it  is  a 
mortgage.  The  substance  and  not  the  form  of  expression  is  chiefly 
to  be  regarded  ;  and  an  enlarged  and  liberal  view  is  to  be  taken 

1  Smith   V.   Cannell,  supra;    Brown  v.  Hancock  v.   Carlton,  6  Gray  (Mass.),  39, 

Staples,  28  Me.  497  ;  Hardy  v.  Nelson,  27  61  ;    Cross    v.    Robinson,  21   Conn.   379, 

Me.  525;  Geyer  v.  Girard,  22  Mo.  159;  387;    Kellog  v.  Wood,  4   Paige  (N.  Y.), 

Connor    v.     Eddy,   25    Mo.   72;    Lot   v.  578. 

Thomas,  1  Penn.  (N.  J.)  407.     See,  also,  2  Adams  i'.  Stevens,  49  Me.  362. 

51 


§  70.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

of  the  instrument  in  order  to  ascertain  and  carry  into  effect  the 
intention  of  the  parties.^  It  is  not  necessary  that  the  condition 
of  the  mortgage  should  be  so  certain  as  to  preclude  the  necessity 
of  extraneous  inquiry  as  to  what  it  really  is,  and  whether  it  has 
been  performed  ;  ^  as  in  the  case  of  a  mortgage  to  secure  future 
advances  or  to  indemnify  a  surety.  But  unless  it  appears  upon 
what  event  the  deed  is  to  become  void,  or  that  it  is  to  become 
void  in  some  event,  it  is  not  a  mortgage.^ 

70.  Description  of  the  debt  secured.  —  To  constitute  a  mort- 
gage there  must  necessarily  be  a  debt  which  is  the  subject  of  the 
security.  But  it  is  not  necessary  that  there  should  be  any  per- 
sonal liability  for  the  payment  of  the  debt :  as  in  the  case  of  a 
mortgage  to  secure  advances  to  be  made  subsequently,  the  parties 
may  agree  that  the  mortgagee  shall  advance  the  money,  and  rely 
solely  for  his  security  upon  the  pledge  of  the  real  estate.^  For- 
merly, mortgages  were  frequently  given  for  the  security  of  exist- 
ing debts  without  mentioning  any  note,  bond,  or  other  personal 
obligation.  There  can  be  no  question  as  to  their  validity,  not  only 
as  against  the  mortgagor,  but  against  all  claiming  subsequently. 
Whether  there  can  be  any  action  against  the  mortgagor  personally 
may  depend  upon  the  particular  circumstances  of  different  cases. 
Where  there  is  a  contract,  express  or  implied,  for  the  payment  of 
the  debt,  this  is  not  merged  in  the  security  created  by  the  mort- 
gage, and  the  creditor  may  maintain  assumpsit.^ 

Literal  exactness  in  describing  the  indebtedness  is  not  required ; 
it  is  sufficient  if  the  description  be  correct  so  far  as  it  goes,  and 
full  enough  to  direct  attention  to  the  sources  of  correct  and  full 
information  in  regard  to  it,  and  the  language  used  is  not  liable  to 
deceive  or  mislead  as  to  the  nature  or  amount  of  it.*^  The  condi- 
tion of  a  mortgage  specified  that  the  mortgagee  was  an  accommoda- 
tion indorser  and  signer  for  the  mortgagors  on  sundry  notes,  drafts, 

1  Steel  V.  Steel,  4  Allen  (Mass.),  417  ;  10  Cal.  197;  Hodgdon  v.  Shannon,  44  N. 
Lanfair  v.  Lanfair,  18  Pick.  (Mass.)  299  ;     H.  572. 

Skinner  v.  Cox,  4  Dev.  (N.  C.)  L.  59.  6  Yates   v.  Aston,  4  Ad.  &  El.  N.  S. 

2  Youngs  V.  Wilson,  27  N.  Y.  351.  182. 

8  Goddard  v.  Coe,  55  Me.  385  ;  Adams  «  Rjcketson  v.  Richardson,  19  Cal.  330 ; 

V.    Stevens,  supra;    Freeman's   Bank    v.  Booth  i'.  Barnum,  9  Conn.  286 ;  Sheafe  w. 

Vose,  23  Me.  98.  Gerry,  18  N.  H.  245;  Gilman  v.   Moody, 

See  chapter  ix. ;  South  Sea  Company  43  N.  H.  239  ;  Hurd  j;.  Robinson,  11  Ohio 

V.  Duncomb,  2  Stra.  919  ;  Hickox  r.  Lowe,  St.  232  ;  Gill  v.  Finney,  12  lb.  38. 

52 


THE   CONDITION.  [§  71. 

and  bills  of  exchange,  to  the  amount  of  $50,000,  which  were  then 
maturing  ;  a  particular  description  of  which  they  were  not  able  to 
give.  The  mortgagors  were  partners  and  were  in  a  failing  condi- 
tion, and  at  the  time  the  mortgages  were  given  it  was  necessary  to 
give  the  security  before  a  more  accurate  description  could  be 
made ;  but  this  description  was  held  to  be  sufficient.-  Even  a 
mortgage  to  secure  all  existing  debts  of  the  mortgagor  to  the 
mortgagee  is  not  invalid  for  want  of  certainty  in  the  amount  se- 
cured.^ 

The  condition  of  the  mortgage  must  give  reasonable  notice  of 
the  incumbrance  on  the  land  mortgaged  in  order  to  affect  the 
creditors  of  the  mortgagor,  who  have  no  notice  of  the  real  incum- 
brance.^ It  need  not  be  so  complete  as  to  preclude  extraneous 
inquiry  concerning  the  liens  on  the  property  ;  but  it  must  with 
reasonable  certainty  show  what  is  the  subject  matter  of  the  mort- 
gage, and  must  so  define  the  incumbrance  that  a  fraudulent  mort- 
gagor may  not  substitute  other  debts  and  shield  himself  from  the 
demands  of  his  creditors.^  Where  a  mortgage  described  the  debt 
as  a  note  of  $1,000,  which  was  never  given,  but  the  mortgagor  was 
indebted  to  the  mortgagee  for  goods  sold  to  the  amount  of  $756, 
and  the  latter  had  agreed  to  furnish  additional  goods  up  to  the  sum 
of  $1,000,  and  the  mortgagor  made  this  mortgage  as  security  for 
the  whole,  it  was  held  void  against  an  attaching  creditor.  The 
indebtedness  actually  existing  eould  not  be  substituted  for  the  in- 
debtedness described.^ 

71.  Note  and  mortgage  to  be  construed  together.  —  The 
note  and  mortgage  when  made  at  the  same  time,  and  in  relation 
to  the  same  subject,  are  a  part  of  one  transaction,  and  constitute 
one  contract,  and  must  be  construed  together  as  if  they  were 
parts  of  one  instrument.^  They  explain  each  other  so  far  as  the 
indebtedness  is  concerned.'^     The  mortgage  usually  describes  the 

1  Lewis  V.  De  Forest,  20  Conn.  427.  ing,  7  Conn.  387,  396  ;  Booth  v.  Barnum, 

2  Michigan  Ins.  Co.  v.  Brown,  II  Mich.     9  Conn.  286,  290. 

265;  Machette  v.  Wanless,  1  Col.  225.  ^  Bramhall  v.  Flood,  supra. 

3  Bacon  v.  Brown,  19  Conn.  33  :  Stough-  ^  Chick  v.  Willetts,  2  Kana.  384 ;  Round 
ton  V.  Pasco,  5  Conn.  442,  446  ;  Merrills     v.  Donnel,  5  Kans.  54. 

V.  Swift,  18  Conn.  257,  264.  ''  Crafts  v.  Crafts,  13  Gray  (Mass.),  360  ; 

*  Hubbard   v.    Savage,   8    Conn.   215;  Somersworth  Savings    Bank   v.  Roberts, 

Pettibone    v.    Griswold,    4    Conn.    158;  38  N.  H.  22  ;  Bassett  r.  Bassett,  10  N.  H. 

Bramhall  v.  Flood,  41  Conn.  68  ;  Stough-  64  ;  Boody  v.  Davis,  20  N.  H.  140. 
ton  V.  Pasco,  5  Conn.  446  ;  Crane  v.  Dem- 

53 


§  71.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

note,  stating  the  date,  amount,  the  makers  of  it,  and  the  time 
when  it  is  payable.  Such  description  serves  to  identify  the  note.^ 
The  mortgage  may  describe  the  debt  as  well,  and  thus  may  qualify 
the  terms  of  the  note.  For  instance,  where  a  note  was  given 
payable  in  five  years  from  date,  with  interest  at  ten  per  cent., 
and  at  the  same  time  a  mortgage  was  given  to  secure  the  payment 
of  the  note,  in  which  it  was  stipulated  that  the  interest  should  be 
"  payable  annually,"  the  agreement  was  held  to  be  that  interest 
at  ten  per  cent,  was  payable  annually,  and  that  foreclosure  might 
be  had  for  the  non-payment  of  the  interest.^  And  so  where  the 
mortgage  contained  a  stipulation  that  a  general  execution  should 
not  issue  upon  it,  although  a  note  accompanied  the  mortgage,  it 
was  held  that  the  mortgagee  could  not  recover  a  general  judgment 
on  the  note,  his  remedy  being  limited  to  the  property.^ 

Parol  evidence  is  admissible  to  identify  the  note  intended  to  be 
pecured.* 

Except  in  this  way  the  mortgage  notes  constitute  no  part  of 
the  mortgage.  They  are  not  essential  to  its  validity.  They  need 
not  be  produced  in  evidence,  in  order  to  establish  the  mortgage 
title  and  right  to  possession.  The  mortgage  itself  is  a  convey- 
ance of  the  estate,  and  the  recital  in  the  condition  of  the  notes 
secured  is  an  admission  of  their  existence,  and  of  the  existence  of 
the  debt.  For  the  purpose  of  establishing  the  title  or  right  of 
possession,  the  mortgage  alone  without  the  notes  is  suflficient  evi- 
dence of  title  and  of  the  mortgage  debt.^ 

But  upon  the  foreclosure  of  a  mortgage  it  is  necessary  to  pro- 
duce the  note  if  there  be  one ;  and  if  the  note  produced  corre- 
sponds with  the  description  in  the  mortgage  as  to  date,  amount, 
parties,  rate  of  interest,  and  maturity,  such  correspondence, 
coupled  with  the  possession  of  the  note  by  the  holder  of  the 
mortgage,  raises  a  presumption  of  identity,  and  throws  upon  the 
mortgagor  the  burden  of  showing  another  note  of  like  descrip- 
tion.^ When  no  note  or  bond  accompanies  the  mortgage,  a  recital 
of  indebtedness  in  the  mortgage  is  sufficient  evidence  of  the  debt 
in  a  suit  to  foreclose  it.^ 

i  Webb  V.   Stone,  24  N.   H.  282,  287 ;         *  Melvin   v.   Fellows,   33   N.    H.    401  ; 
Sheafe  v.  Gerry,  18  N.  H.  245,  248 ;   Rob-    Preseott  v.  Hayes,  43  N.  H.  593. 
ertson  v.  Suirk,  15  N.  II.  109,  112.  5  Smith  v.  Johns,  3  Gray  (Mass.),  517. 

2  Muzzy  V.  Knight,  8  Kans.  456.  6  jones  v.  Elliott,  4  La.  Ann.  303. 

8  Keaniou  v.  Kelsey,  10  Iowa,  443.  '^  Whitney  v.  Buckman,    13    Cal.  536; 

and  see  Eyster  v.  Gaff,  2  Col.  228. 

64 


THE   CONDITION.  [§  72. 

72.  Covenant  for  the  payment  of  a  debt.  —  Although  it  is 
essential  that  a  mortgage  should  secure  the  payment  of  some  debt 
or  the  performance  of  some  duty,  yet  it  is  not  essential  that  it 
should  contain  any  covenant  to  that  effect,^  and  it  is  not  necessary 
that  there  should  be  any  collateral  or  personal  security  for  the 
debt  secured. 2  In  such  case,  of  course,  the  remedy  of  the  mort- 
gagee is  confined  to  the  land  alone. ^ 

The  mortgages  commonly  used  in  this  country  refer  to  the  debt 
only  in  the  condition,  and  there  merely  by  way  of  recital  of  the 
event  upon  which  the  deed  is  to  be  void.  It  is  seldom  that  any 
express  promise  is  made  by  the  debtor  in  the  mortgage  to  pay  the 
debt ;  and  no  promise  can  be  implied  from  the  recital  in  the  con- 
dition. It  is  provided  by  statute  in  several  states  that  no  such 
promise  shall  be  implied  in  the  mortgage.* 

When  there  is  an  express  covenant  in  the  mortgage  for  the 
payment  of  the  debt,  the  mortgagee  may  maintain  an  action  at 
law  upon  it.  He  is  not  confined  to  his  remedy  by  foreclosure 
suit.^  "  It  seems  to  be  generally  admitted  in  the  books,"  says 
Chancellor  Kent,  "  that  the  mortgagee  may  proceed  at  law  on  his 
bond  or  covenant,  at  the  same  time  that  he  is  prosecuting  on  his 

^  See  chapter  ix. ;  Dougherty  v.  McCol-  that  he  will  pay  the  said  mortgage  money 

gan,  6  Gill  &  J.   (Md.)  257;  Hickox  v.  and  interest  on  the  days  and  times  afore- 

Lowe,  10  Cal.  197.  said." 

In   mortgages   by    indenture    a   clause        The  court  say  that  such  a  covenant  is  no 

something  like  the  following  is  sometimes  part  of  the  condition  of  the  instrument, 

inserted :  —  and   in   no  way    pertains  to  the   convey- 

"  And  the  said  party  of  the  first  part,  ance  of  the  land.     "It  is  not  a  covenant 

for  himself,  his  heirs,  executors,  and  ad-  securing  the  mortgagee  against  the  failure 

ministratovs,  doth  covenant  and  agree  to  of  the   title,  or  warranting  possession  or 

pay  unto  the  party  of  the  second  part,  his  enjoyment  of  the  land.     It  is   simply  an 

executors,  administrators,  or  assigns,  the  obligation  binding  the  mortgagor  to  pay 

said  sum  of  money  and  interest,  as  above  the  money.     We  know  of  no  rule  of  law 

mentioned  and  expressed  in  the  condition  which   will  invalidate   such    a   covenant, 

of  the  said  bond."  when  found  in  a  mortgage."    In  Newbury 

2  Mitchell  V.  Burnham,  44  Me.  286;  r.  Rutter,  38  Iowa,  179,  the  mortgagors 
Smith  V.  People's  Bank,  24  Me.  185;  recited  that  "we  are  justly  indebted"  in 
Brookings  v.  White,  49  Me.  479.  a  sum  named,  and  "  if  from  any  cause  said 

3  Weed  t'.  Covin,  14  Barb.  (N.Y.)  242.  property  shall  fail  to  satisfy  said  debt, 
*  See  chapter  ix.  interest,  and  charges,  we  covenant  and 
5  Brown  v.  Cascaden,  43  Iowa,  103.  agree  to  pay  the  deficiency ; "  and  there 
The  covenant  was  as  follows  :  —  being  no  note  for  the  debt,  an  action  at 
"  And   the  said  party  of  the  first  part  law,  without  first    foreclosing  the   mort- 

(the  mortgagor)  covenants  with  the  said    gage,  was  sustained, 
party  of    the  third  part  (the  mortgagee), 

65 


§§  73,  74.]        FORM   AND  REQUISITES   OF   A   MORTGAGE. 

mortgage  in  chancery."  ^  Instead  of  pursuing  both  the  remedy 
against  the  person  and  that  against  the  thing,  he  may  elect  to 
pursue  either  one,  and  afterwards,  if  he  has  not  obtained  satisfac- 
tion, may  follow  the  other.^ 

73.  Interest  is  the  thing  the  mortgage  is  made  for  when  a  loan 
of  money  has  been  made  upon  it,  and  the  rate  and  time  of  pay- 
ment are  usually  stated  with  care.^  Interest  coupons  are  some- 
times executed,  payable  at  the  several  times  when  interest  will  be 
due  upon  the  mortgage  by  its  terms  during  the  whole  period  it 
has  to  run.  These  are  usually  negotiable  in  form,  and  though 
detached  from  the  mortgage  note  or  bond,  are  still  secured  by  the 
mortgage. 

Interest  is  usually  payable  annually  or  semi-annually  from  the 
date  of  the  mortgage.  A  provision  for  the  payment  of  "  interest 
annually  on  the  first  day  of  April  in  each  year  "  makes  the  first 
interest  due  on  the  first  day  of  April  following  the  date  of  the 
mortgage,  though  its  date  be  much  later  in  the  year.^ 

74.  When  the  rate  of  interest  is  not  named.  —  A  mortgage 
debt^made  payable  with  interest,  without  naming  the  rate,  bears 
interest  at  the  rate  fixed  by  law  ;  and  the  law  in  force  at  the  date 
of  the  instrument  governs  the  rate.^  If  the  times  when  the  in- 
terest shall  be  paid  are  not  specified,  but  the  language  is  such 
that  some  periodical  payment  is  intended,  it  may  be  proved  by 
parol  evidence  that  the  payments  were  to  be  made  yearly,  for  in- 
stance, even  as  against  a  purchaser  of  the  mortgaged  premises.^ 
The  terms  of  the  mortgage  cannot  be  changed  as  against  a  pur- 
chaser, but  he  is  subject  to  the  agreement  contained  in  the  mort- 
gage, and  to  such  construction  as  may  be  required  of  what  is 
ambiguous.  The  proof  of  the  periods  at  which  the  interest  is 
payable  does  not  alter  the  instrument,  but  merely  supplies  what 
was  omitted,  and  is  necessary  to  its  proper  interpretation. 

1  Dunkley  v.  Van  Buren,  3  Johns.  (N.  ^  Ackens  v.  Winston,  22  N.  J.  Eq.  444. 
Y.)  Ch.  330.                                           •  6  Ackens  v.  Winston,  supra.     The  lan- 

2  Vansant  u.  Allmon,23lll.  30  ;  Lichty  guage  was,  "  within  sixty  days  from  the 
V.  McMartin,  11  Ivans.  565.  time   it  becomes  due,  at  any  time  during 

*  For  the  rates  of  interest  allowed  in  the  ten  years."     This  is  sufficient  to  put 

the  several  states,  see  chapter  x.  a  purchaser  upon  inquiry  as  to  the  periods 

4  Cook  V.  Clark,  3  liun  (N.  Y.),  247  ;  of  payment. 
5  Thomp.  &  C.  493. 

56 


THE   CONDITION.  [§  75. 

"When  the  time  of  payment  of  the  mortgage  debt  is  definitely 
fixed,  and  the  amount  of  it  as  well,  interest  is  allowed  from  the 
date  of  the  default,  although  not  stipulated  for  in  the  mortgage  or 
the  note  accompanying  it.  Interest  follows  in  such  case  as  an  in- 
variable legal  incident  of  the  principal  debt.^  But  when  the  time 
of  payment  is  uncertain,  as  for  instance  in  case  of  a  mortgage  debt 
made  payable  at  the  decease  of  a  third  person,  interest  can  be  re- 
covered only  from  the  date  of  a  demand  of  payment.^ 

The  statutes  of  several  states  prescribe  a  rate  of  interest  for 
contracts  in  which  the  parties  have  not  agreed  upon  a  rate,  and 
for  cases  in  which  interest  is  given  by  law,  but  allow  the  parties 
to  agree  in  writing  for  any  rate  of  interest.  Under  such  a  pro- 
vision the  rate  of  interest  agreed  upon  by  the  parties  continues 
the  same  after  the  maturity  of  the  obligation  down  to  the  time  of 
rendering  judgment  upon  it.  The  interest  both  before  and  after 
maturity  is  recoverable  by  virtue  of  the  contract,  as  an  incident 
or  part  of  the  debt.^ 

76.  The  time  of  payment  of  the  debt  secured  should  be  fixed, 
so  that  it  may  be  known  with  certainty  when  a  default  occurs. 
If  no  time  of  payment  be  named,  the  debt  is  payable  upon  de- 
mand, and  suit  may  be  brought  to  enforce  both  the  debt  and  the 
mortgage  immediately. 

When  the  time  of  payment  is  fixed  by  the  mortgage  or  the 
note  secured  by  it,  the  mortgagor  is  not  entitled  to  any  notice  of 
it.^  Grace  is  to  be  allowed  in  computing  the  time  of  payment  of 
a  mortgage  note,  or  of  any  instalment  of  it,  payable  at  a  day 
certain,  in  the  same  manner  as  upon  a  note  not  secured  by  mort- 
gage.^ It  is  allowed  also  upon  an  instalment  of  interest  falling 
due  at  the  same  time  with  the  principal  or  any  instalment  of  the 
principal. 

The  usual  form  of  power  of  sale  mortgage  in  use  in  Massachu- 
setts and  other  New  England  states  provides,  that  upon  a  sale  of 
the  premises  under  the  power  the  mortgagee  may,  out  of  the 
money  arising  from  the  sale,  "  retain  all  sums  then  secured  by 
this  deed,  whether  then  or  thereafter  payable."     This  provision 

1  Spencer  v.  Pierce,  5  R.  I.  63.  s  Brannon  v.  Hursell,  112  Mass.  63,  and 

^  Gardiner   v.    Woodmansee,   2    R.   I.     cases  cited. 
558.  *  Ing-  V.  Cromwell,  4  Md.  31. 

5  Coffin  V.  Loring,  5  Allen  (Mass.),  153. 
57 


§  76.]  FORM   AND   REQUISITES   OF  A   MORTGAGE. 

in  effect  makes  the  whole  mortgage  payable  upon  any  default 
which  authorizes  the  exercise  of  the  power  of  sale,  if  he  in  fact 
does  exercise  the  power  ;  and  in  the  form  in  common  use  the  condi- 
tion is  for  the  payment  of  the  principal,  instalments,  and  interest 
at  the  times  named,  as  also  the  taxes  and  insurance,  and  upon  any 
breach  of  the  condition  the  mortgagee  may  proceed  to  foreclose. 

Of  course  in  such  case  the  right  to  receive  payment  of  sums  not 
due  arises  only  upon  a  sale.  And  so  when  a  trustee  in  a  trust 
deed  is  empowered  to  sell  the  property  when  the  first  instalment 
falls  due,  and  all  the  indebtedness  is  to  be  considered  as  matured 
upon  the  first  default,  for  the  purpose  of  the  application  of  the 
trust  fund,  the  indebtedness  not  then  due  cannot  be  considered 
as  matured,  so  that  a  personal  judgment  can  be  rendered  for  it.^ 

76.  A  stipulation  that  the  whole  sum  shall  become  due  and 
payable  upon  any  default  in  the  payment  of  any  part  of  the  prin- 
cipal or  interest  is  universally  held  to  be  legal  and  valid.  It  is  not 
objectionable  as  being  in  the  nature  of  a  penalty  or  forfeiture.^ 

In  some  states  such  a  provision  is  so  usual,  that  authority  to  an 
agent  or  officer  to  execute  a  mortgage,  the  terms  and  conditions  of 
which  are  not  specified,  would  authorize  him  to  insert  this  pro- 
vision ;  while  in  other  states  special  authority  to  use  this  provision 
is  necessary.     His  general  authority  only  authorizes  the  use  of  the 

1  Mason  v.  Barnard,  36  Mo.  384.  thereof,  on  any  day  whereon  the  same  is 

2  Steel  V.  Bradfield,  4  Taunt.  227  ;  made  payable,  as  above  expressed ;  and 
James  v.  Thomas,  5  B.  &  Ad.  40  ;  Mo-  should  the  same  remain  unpaid  and  in 
bray  v.  Leckie,  42  Md.  474  ;  Schooley  v.  arrear  for  the  space  of  days,  then, 
Romain,  31  Md.  574 ;  Kramer  V.  Kebman,  and  from  thenceforth, —  that  is  to  say, 
9  Iowa,  114;  Robinson  v.  Loomis,  51  after  the  lapse  of  the  said  days, — 
Penn.  St.  78;  Stanclift  i;.  Norton,  11  Kans.  the  aforesaid  principal   sum  of 

218;  First  Nat.  Bank  v.  Peck,  8  Kans.  dollars,  with  all  arrearage  of  interest 
660;  Rubens  w.  Prindle,  44  Barb.  (N.  Y.)  thereon,  shall,  at  the  option  of  the  said 
336 ;  Ottawa  Nortiiern  Plank  Road  Co.  v.  party  of  the  second  part,  his  executors, 
Murray,  15  111.  336  ;  Hale  v.  Gouvemeur,  administrators,  or  assigns,  become  and  be 
4  Edw.  (N.  y.)  Ch.  207  ;  Noyes  v.  Clark,  due  and  payable  immediately  thereafter, 
7  Paige  (N.  Y.)  Ch.  179  ;  Ferris  v.  Ferris,  although  the  period  above  limited  for  the 
28  Barb.  (N.  Y.)  29;  Valentine  v.  Van  payment  thereof  may  not  then  have  ex- 
Wagner,  37  Barb.  (N.  Y.)  60;  Crane  v.  pired,  anything  thereinbefore  contained  to 
Ward,  Clarke's  (N.  Y.)  Ch.  393.  the  contrary  thereof  in  anywise  notwith- 

The  following  is  a  form  of  the  interest  standing,  as  by  the  said  bond  or  obliga- 

clause  frequently  used  : —  tion,  and  the  condition  thereof,  reference 

"  It  is  thereby  expressly  agreed,   that,  being    thereto  had,  may   more   fully  ap- 

shoukl  any  default  be  made   in  the  pay-  pear." 
ment  of  the  said  interest,  or  of  any  part 

58 


THE   CONDITION.  *  [§  77. 

terms  and  provisions  ordinaril}-  inserted,  and  therefore  implied  by 
the  terra  mortgage.  But  the  unauthorized  use  of  this  provision 
would  not  invalidate  the  mortgage  in  other  respects,  but  only  in 
this  respect.  1 

If  the  provision  be  that  the  mortgagee  may  upon  default,  or, 
after  the  default  has  continued  a  certain  time,  elect  that  the  whole 
amount  of  the  debt  shall  become  payable,  the  mortgagee,  after  the 
happening  of  this  contingency,  cannot  be  compelled  to  accept  the 
interest  or  instalment  due,  and  yield  his  claim  for  the  whole 
amount.  In  such  case  courts  of  equity  have  no  power  to  relieve 
against  the  default  and  its  consequences.^  It  is  no  ground  for 
such  relief  that  the  mortgagor  was  unable  to  find  the  holder  of  the 
mortgage  until  the  time  of  payment  had  passed.^  Of  course 
there  would  be  relief  if  the  payment  was  prevented  by  fraud  on 
the  part  of  the  mortgage  creditor. 

It  is  not  essential  that  the  interest  clause  or  option  clause,  as 
it  is  sometimes  called,  should  be  contained  in  the  note  or  bond  as 
well  as  the  mortgage,  to  make  it  effectual,  inasmuch  as  both  in- 
struments are  to  be  construed  together.^ 

77.  Payment  of  taxes.  —  The  mortgage  usually  provides  by 
way  of  covenant  or  condition  that  the  mortgagor  shall  pay  all  taxes 
and  assessments  levied  upon  the  premises.^  The  payment  of  the 
taxes  thus  becomes  as  obligatory  upon  the  debtor  as  the  payment 
of  the  mortgage  debt ;  and  upon  his  failure  to  pay  them,  the 
mortgagee  may  pay  them  and  have  the  amount  included  in  any 
judgment  that  he  may  afterwards  obtain  upon  the  mortgage. 
Sometimes  the  mortgage  provides  that  such  taxes,  when  paid  by 
the  mortgagee,  shall  become  a  part  of  the  mortgage  debt ;  but 
without  such  provision  the  amount  so  paid  in  fact  becomes  a  lien 
under  the  mortgage.®     A  provision  that  the  mortgagee  may  retain 

1  Jesup  V.  City  Bank  of  Racine,  U  ^  Dwight  v.  Webster,  32  Barb.  47  ;  S. 
"Wis.  331.  C.  19  How.  Pr.  349. 

2  Malcolm  v.  Allen,  49  N.  Y.  448 ;  Eu-  *  Schoonmaker  v.  Taylor,  14  Wis.  313. 
bens  V.  Prindle,  44  Barb.  (N.  Y.)  336 ;  ^  it  is,  in  Maryland,  provided  by  stat- 
Broderick  v.  Smith,  26  lb.  539  ;  S.  C.  ute  that  there  may  be  such  a  covenant. 
15  How.  Pr.  434 ;  Valentine  v.  Van  Wag-  Pub.  Gen.  Laws  1860,  art.  64,  §  4. 

ner,  37  Barb.  (N.  Y.)  60;  S.  C.  23  How.  ^  See  chapter   xxxvii.,  and   also  Stan- 

Pr.  400  ;  Hale  v.  Gouverneur,  4  Edw.  (N.  clift  v.  Norton,  11  Ivans.  218. 

Y.)  Ch.  207  ;  Ferris  v.  Ferris,  28  Barb.  This   decision   had    reference  to  a  stat- 

(N.  Y.)  29  ;  S.  C.  16  How.  Pr.  102;  Ben-  ute  then  in  force  declaring  that  taxes  so 

nett  V.  Stevenson,  53  N.  Y.  508.  paid  should  be  a  lien  on  the  land;  but  the 

69 


§§  78,  79.]        FORM   A*ND   REQUISITES   OF   A   MORTGAGE. 

from  the  proceeds  of  a  sale  under  the  mortgage  all  charges  and 
expenses  incurred  by  reason  of  any  failure  of  the  mortgagor  to 
perform  the  condition  and  covenants  of  the  mortgage,  includes 
payments  for  taxes  and  the  like. 

A  stipulation  in  a  mortgage,  that  upon  a  failure  to  pay  the  taxes 
levied  upon  the  premises,  the  principal  debt  shall  become  imme- 
diately due  and  payable,  is  valid.  It  is  similar  to  the  provision 
very  common  in  mortgages,  and  generally  sustained,  that  the  prin- 
cipal shall  become  due  on  a  failure  to  pay  the  interest  promptly.^ 

This  covenant  cannot  be  enforced  after  the  debt  is  discharged. 
It  expires  with  the  mortgage.  The  effect  upon  the  covenant  is 
the  same  whether  the  mortgagor  voluntarily  pays  the  mortgage 
debt,  or  whether  it  is  paid  by  the  mortgagee's  buying  in  the  mort- 
gaged premises  at  a  foreclosure  sale.  If,  therefore,  the  mortgagee 
purchase  at  the  sale  for  less  than  the  debt,  and  the  deficiency  be 
paid  by  the  mortgagor,  he  cannot  afterwards  be  compelled  to  pay 
to  the  mortgagee  the  amount  the  latter  has  been  obliged  to  pay  to 
redeem  the  premises  from  sales  for  taxes  assessed  while  the  mort- 
gage was  in  force.  The  covenant  to  pay  taxes,  being  part  and 
parcel  of  the  mortgage,  expires  with  it.^ 

78.  InsTirance.  —  It  is  usually  a  condition  of  the  mortgage  also 
that  the  mortgagor  shall  keep  the  buildings  upon  the  mortgaged 
premises  insured  against  fire  in  a  certain  sum  for  the  benefit  of  the 
mortgagee  at  such  insurance  office  as  he  may  approve.^ 

A  breach  of  this  condition,  or  of  the  condition  to  pay  the  taxes 
assessed  upon  the  premises,  is  as  effectual  in  giving  the  mortgagee 
a  right  to  enforce  his  mortgage  as  is  a  breach  of  the  condition  to 
pay  an  instalment  of  interest  or  principal,  or  to  pay  the  principal 
debt. 

4.  Special  Stipulations. 

79.  Special  provisions  of  various  kinds  to  suit  the  conven- 
ience of  the  parties  may  be  inserted  in  the  mortgage.  Among 
those  most  frequently  used  is  a  provision  that  upon  making  certain 
payments  the  mortgagor  shall  be  entitled  to  have  certain  portions 

court  declare  that  without  the  statute  the        i  Stanclift  v.  Norton,  11  Kans.  218. 
mortgagee  would  probably  have  this  right,         2  Hitchcock  v.  Merrick,  18  Wis.  357. 
in  order  to  keep  his  security  perfect.    And        ^  ggg  chapter  xviii.  on  "  Insurance." 
see  Sharp  v.  Barker,  11  Kans.  381. 
60 


SPECIAL   STIPULATIONS.  [§  80. 

of  the  mortgaged  pi-emises  released  from  the  operation  of  the 
mortgage  ;  or  a  provision  that  the  mortgagor  may  pay  the  whole 
or  a  part  of  the  debt  at  his  option  before  the  time  fixed  for  the 
payment  of  it. 

A  provision  in  a  mortgage,  reserving  to  the  mortgagor  "  the 
right  to  pay  all,  or  any  part  of  said  indebtedness,  at  any  time 
during  the  present  year  (1863),  in  current  paper  funds  "  does  not 
restrict  him  to  a  single  payment  of  the  entire  amount  due,  but 
authorizes  partial  payments  at  different  times  during  the  year ; 
and  such  payments  were  authorized,  in  treasury  notes  of  the  Con- 
federate States,  notwithstanding  their  great  depreciation.^ 

A  stipulation  for  partial  releases  of  lots  embraced  in  the  mort- 
gage upon  the  payment  of  stipulated  sums,  "  provided  that  the 
covenants  and  conditions  of  said  mortgage  shall  be  faithfully  kept 
and  performed  "  by  the  mortgagor,  can  be  enforced  only  upon 
strict  performance  of  the  conditions,  and  making  all  payments  of 
principal  and  interest  as  they  become  due.  Such  a  covenant  run- 
ning only  to  the  mortgagor,  without  mention  of  his  assigns,  is  per- 
sonal in  its  character,  and  cannot  be  enforced  by  a  purchaser  from 
him. 2 

A  stipulation  that  in  case  the  mortgagor  should  be  able  to  sell 
the  premises  or  mortgage  them  to  another  so  as  to  pay  off  the 
mortgage  debt,  the  mortgagee  should  reconvey  to  him,  so  as  to  en- 
able him  to  carry  out  the  transaction,  does  not  confer  upon  him  a 
power  of  sale,  for  he  had  that  already,  but  operates  as  a  covenant 
to  reconvey  for  the  purpose  named.^ 

80.  Mortgagor's  possession.  —  The  provision,  now  almost  uni- 
versally inserted  in  mortgages,  that  until  default  in  the  perform- 
ance of  the  condition  of  the  deed  the  mortgagor  may  hold  the 
premises,  was  formerly  exceptional.  In  1819,  Chief  Justice  Parker 
said  that  such  a  provision  was  seldom  seen  in  Massachusetts.^  In 
another  case  in  this  state  the  same  year  the  court  say,  that  al- 
though parties  intend  that  the  mortgagor  shall  remain  in  posses- 
sion, yet  they  go  on  making  mortgages  without  any  covenant 
respecting   the   possession.^       Evidence  of   the  intention  of   the 

1  Stalworth  v.  Blum,  41  Ala.  319.  3  Coffing  v.  Taylor,  16  111.  457. 

2  Pierce  v.  Kneeland,  16  Wis.  672.  *  Smith  v.  Dyer,  16  Mass.  18,  24. 
For  construction  of  other  provisions  for        ^  Colman  v.  Packard,  16  Mass.  39,  40. 

release  of  portions  of  the  property,  see  In  Massachusetts  it  is  provided  that  the 
Brigham  v.  Avery,  48  Vt.  602.  statutes  relating  to  foreclosure  shall  not 

61 


§  81.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

parties,  or  of  their  agreement  at  the  time  of  making  the  mort- 
gage, that  the  mortgagor  should  continue  in  possession  until  he 
should  fail  to  perform  the  condition,  cannot  be  received  to  control 
the  settled  rule  of  law,  that  without  such  provision  the  mortgagee 
is  entitled  to  immediate  possession. 

But  although  the  mortgagor's  right  of  possession  be  not  ex- 
pressly provided  for,  he  is  entitled  to  it,  if  the  condition  of  the 
mortgage  be  such  as  to  imply  his  possession  for  the  purpose  of  per- 
forming it.^ 

When  the  mortgagor's  right  of  possession  is  provided  for,  or 
necessarily  implied,  the  mortgagee  cannot  enter  until  default,  and 
cannot  after  that  give  any  one  else  the  right  to  occupy,  and  ex- 
clude the  owner  of  the  equity,  until  he  has  made  actual  entry  or 
brought  suit  for  possession. ^ 

5.    Execution  ayid  Delivery. 

81.  Sealing  is  an  essential  formality  to  the  execution  of  any 
legal  conveyance  of  real  estate.  In  some  states  it  is  provided  by 
statute  that  a  scroll  may  be  used  in  place  of  a  seal,  but  this  un- 
seemly substitute  for  the  ancient  formality  is  only  another  for- 
mality none  the  less  requisite.^  A  mortgage  executed  without  a 
seal,  except  in  a  few  states  where  it  is  not  required,  is  not  a  legal 
mortgage.  In  equity  it  amounts  to  a  compact  for  a  mortgage, 
and  as  such  creates  no  lien  as  against  purchasers  from  the  mort- 
gagor, or  as  against  his  creditors,  or  even  against  an  assignee  under 
a  general  assignment  for  the  benefit  of  creditors.* 

Signing  is  the  act  which  imparts  life  to  the  deed.  Although 
the  most  essential  thing  of  all  in  the  execution  of  the  deed,  it  is  a 

prevent  the  mortgngee's  entering  on  the  the  grantor  only,  or  by  writing  signed, 

premises  or  recovering  possession  before  sealed,  and  delivered  by  the  grantor,  may 

breach  of  the  condition,  when  there  is  no  be  a  proper  subject  for  municipal  regula- 

agreement  to   the  contrary,  but  in  such  tion.   But  to  abolish  the  use  of  seals  by  the 

case  he  must  account  for  the  rents  and  substitute  of  a  flourish  of  the  pen,  and  yet 

profits.     Gen.  Stat.  c.  140,  §  9.  continue  to  call  the  instrument  which  has 

^  Wales  V.  Mellen,  1  Gray  (Mass.),  512,  such  a  substitute  a  deed,  or  writing  sealed 

and   cases  cited  ;  Clay  v.  Wren,  34   Me.  and  delivered,  within  the  purview  of  the 

187.  common  or  the  statute  law  of  the  land, 

2  Silloway  v.  Brown,  12  Allen  (Mass.),  seems  to  be  a  misnomer,  and  is  of  much 

30.  more  questionable  import."     4  Com.  453. 

8  Sec  chapter  xiii.  on"  Registratiox."  *  Erwin    v.  Shuey,    8    Ohio    St.   509; 

Chancellor  Kent  says :  "  Whether  land  Bloom  v.  Noggle,  4  lb.  45. 
should  be  conveyed  by  writing,  signed  by 

62 


EXECUTION   AND   DELIVERY.  [§§  82,  83. 

matter  so  much  of  coui'se  that  it  hardly  need  be  mentioned  among 
the  requisites.  A  mortgagor  is  bound  by  a  signature  of  his  name 
made  by  another  person  in  his  presence  and  by  his  direction.  If 
his  name  be  subscribed  by  another  in  his  absence,  he  may  adopt 
the  signature  as  his  own.  His  acknowledgment  of  the  deed  is  a 
sufficient  recognition  of  it.^ 

82.  Witnesses.  —  The  statutes  of  several  states  provide  that 
mortgages  and  other  conveyances  of  real  estate  shall  be  attested 
by  witnesses,  two  being  required  in  some  states,  one  in  others,  and 
in  others  still  none  at  all ;  ^  but  this  requirement,  like  that  for 
the  acknowledgment  of  deeds,  has  reference  chiefly  to  the  record- 
ing of  them,  and  does  not  affect  the  validity  of  the  instruments  as 
between  the  parties  if  not  observed.^  Although  a  mortgage  de- 
fectively executed  in  this  respect  is  not  a  legal  mortgage,  it  may 
be  enforced  in  equity.* 

83.  An  acknowledgment  is  essential  in  order  to  admit  a  deed 
to  record,  but  is  not  otherwise  necessary  as  between  the  parties. 
This  subject  being  fully  treated  of  elsew^here,  it  is  introduced  here 
with  special  reference  to  stating  that  before  the  deed  is  acknowl- 
edged the  execution  of  it  must  be  complete  in  every  other  re- 
spect.'^  The  acknowledgment  is  the  final  act  before  the  delivery 
of  the  deed,  and  must  be  made  of  a  completed  deed. 

Thei-e  can  be  no  valid  acknowledgment  of  a  mortgage  until  all 
material  parts  of  the  instrument  are  written  in,  such  for  instance 
as  the  name  of  the  grantee,  and  the  amount  of  the  lien.^ 

This  rule  applies  with  particular  force  to  acknowledgments 
made  by  married  women,  where  the  law  protects  them  by  requir- 
ing a  separate  examination  by  the  magistrate  who  takes  the  ac- 
knowledgment.''' In  a  case  where  a  wife  so  acknowledged  an 
instrument  intended  to  be  a  mortgage  of  her  separate  lands,  while 
there  were  blanks  for  the  insertion  of  the  mortgagee's  name  and 
the  sum  borrowed,  it  was  urged  that  she  should  be  estopped  from 
denying  that  she  had  signed  and  acknowledged  the  mortgage. 
But  Mr.  Justice  Nelson  said  :    "  The  answer  to  this  is,  that  to 

1  Bartlett  v.  Drake,  100  Mass.  174.  ^  See  chapter  xiii.  on  "  Registkatiox." 

2  Seechapterxiii. on  "Registration."        ^  Drury  f.  Foster,  2  Wall.  24. 

8  Gardner  v.  Moore,  51  Ga.  268.  ''  Drury  v.  Foster,  su/na.     Followed  in 

*  Lakev.  Doud,  10  Ohio,  415.  McQuie  v.  Pcay,  58  Mo.  56. 

63 


§  84.]  FORM  AND   REQUISITES   OF   A  MORTGAGE. 

permit  an  estoppel  to  operate  against  her  would  be  a  virtual 
repeal  of  the  statute  that  extends  to  her  this  protection,  and  also 
a  denial  of  the  disability  of  the  common  law  that  forbids  the  con- 
veyance of  her  real  estate  by  procuration.  It  would  introduce 
into  law  an  entirely  new  system  of  conveyances  of  the  real 
property  of  feme  coverts.  Instead  of  the  transaction  being  a  real 
one  in  conformitj'^  with  established  law,  conveyances,  by  signing 
and  acknowledging  blank  sheets  of  paper,  would  be  the  only  for- 
malities requisite The  difficulty  here  is  not  in  the  form  of 

the  acknowledgment,  but  that  it  applied  to  a  nonentity,  and  was, 
therefore,  nugatory.  The  truth  is,  that  the  acknowledgment  in 
this  case  might  as  well  have  been  taken  and  made  on  a  separate 
piece  of  paper,  and  at  some  subsequent  period  attached  by  the 
officer,  or  some  other  person,  to  a  deed  that  had  never  been  before 
the  feme  covert." 

84.  A  delivery  and  acceptance  of  the  mortgage  are  essen- 
tial to  its  validity.  —  If  not  delivered  directly  to  the  mortgagee 
or  his  agent,  but  to  a  third  person  not  authorized  to  act  for  him, 
it  is  essential  to  show  the  subsequent  acceptance  of  it  by  the  mort- 
gagee, or  else  to  show  notice  to  him  of  the  existence  of  the  mort- 
gage, and  such  additional  circumstances  as  will  afford  a  reasonable 
presumption  of  his  acceptance  of  it.  Such  presumption,  as  against 
others  who  may  acquire  an  interest  in  the  property,  does  not  arise 
merely  from  the  fact  that  the  mortgage  would  be  beneficial  to 
him.^  Until  there  be  something  more  to  show  the  grantee's 
acceptance,  the  presumption  of  it  exists  only  for  his  benefit  as 
against  the  grantor,  his  heirs,  devisees,  and  ordinary  creditors.^ 
The  possession  of  the  deed  by  the  mortgagee  is  presumptive  evi- 
dence of  his  acceptance  of  it.^ 

Without  delivery  there  is  no  mortgage.*  It  takes  effect  only 
from  the  time  of  its  delivery.^  The  fact  that  a  mortgage  has  been 
recorded  raises  no  presumption  of  its  delivery  to  the  mortgagee 
against  his  denial  of  it.     An  actual  delivery  is  not  necessary,  but 

1  Bell  V.   Farmers'  Bank    of   Ky.    11  »  Chandler  r.  Temple,  4  Cash.  (Mass.) 
Bush    (Ky.),   34;    Tuttle  v.   Turner,   28  285  ;  Wolverton  v.  Collins,  34  Iowa,  238. 
Tex.  759 :  Evans  v.  White,  53  Ind.   1  ;  *  Croft  v.  Bunster,  9  Wis.  503 ;  Free- 
Freeman  V.  Peay,  23  Ark.  439.  man   v.   Peay,  23  Ark.  439 ;  Hoadley  v. 

2  Bell  V.  Farmers'  Bank  of  Ky.  supra.  Hadley,  48  Ind.  452. 

5  Milliken  v.  Ham,  36  Ind.  166, 

64 


EXECUTION   AND    DELIVERY.  [§  85. 

there  must  be  some  act  which  in  legal  contemplation  is  equivalent 
to  this.i 

Delivei-y  may  be  made  to  an  agent.  When  the  mortgage  is  to 
a  corporation,  a  delivery  to  any  officer  or  attorney  who  customarily 
acts  for  it  in  such  matters  is  sufficient.^  An  agent  authorized  to 
sell  land,  is  authorized  to  accept  delivery  of  a  mortgage  in  part 
payment  of  the  purchase  money,  unless  it  clearly  appears  that  it 
was  delivered  to  him  for  some  other  purpose.'^ 

The  fact  of  delivery  may  be  shown  by  other  writings  of  the  par- 
ties, in  which  reference  is  made  to  the  mortgage  as  an  existing 
security  ;  or  by  the  subsequent  acts  of  the  parties  with  reference 
to  it.4 

If  it  should  appear  that  a  note  and  mortgage  had  been  executed 
and  left  where  the  mortgagee  could  readily  obtain  wrongful  pos- 
session of  them  and  negotiate  them,  the  maker's  negligence  might 
prevent  his  setting  up  the  defence  that  they  have  no  legal  ex- 
istence.^ 

85.  A  subsequent  acceptance  by  the  mortgagee  of  a  mortgage 
delivered  to  the  recording  officer,  or  to  an  unauthorized  third  per- 
son, gives  effect  to  it  from  the  time  of  the  first  deliver}^,  as  between 
the  parties  to  it ;  but  as  to  persons  Avho  have  acquired  title  to  the 
property,  or  an  interest  in  it,  or  lien  upon  it,  through  or  under  the 
mortgagor  before  the  time  of  the  actual  acceptance  of  the  deed  by 
the  mortgagee,  the  subsequent  acceptance  gives  effect  to  the  deed 
only  from  the  time  of  such  acceptance.  In  the  mean  time  an  at- 
tachment of  the  property  as  belonging  to  the  grantor,^  or  a  judg- 
ment lien  upon  his  property,  will  prevail.'^  The  acceptance  can- 
not relate  back  so  as  to  defeat  the  intervenino;  lien.^ 

When  a  mortgage  has  been  executed  and  tendered  in  compli- 
ance with  an  agreement  of  a  debtor  to  make  a  mortgage,  and  the 
creditor  refuses  to  accept  the  mortgage  as  a  compliance  with  the 
agreement,  and  directs  his  agent  to  procure  a  mortgage  that  will 
meet  the  terms  of  the  agreement,  it  has  been  held  that  the  cred- 

1  Foley  r.  Howard,  8  Iowa,  56.  ^  ggU   ^    Farmers'  Bauk   of    Ky.    11 

2  Patterson  v.  Ball,  19  AVis.  243.  Bush  (Ky.),  34. 

8  Akcrly  v.  Vilas,  21  Wis.  88.  ^  Woodbury  v.  Fisher,  20  Ind.  387. 

*  Truman  v.  McCollum,  20  Wis.  360.  »  Goodsell  v.  Stinson,  7  Blackf.  (Ind.) 

6  See  Tisher  v.  Beckwith,  30  Wis.  56 ;     437. 
S.C.  11  Am.  Rep.  546. 

VOL.  I.  5  65 


§  86.]  FORM   AND    REQUISITES   OF   A   MORTGAGE. 

itor  cannot  afterwards  accept  the  mortgage  without  the  debtor's 
consent.^ 

It  is  sufficient  proof  of  the  delivery  of  a  mortgage  that  it  was 
filed  for  record  by  the  mortgagor,  and  was  afterwards  found  in  the 
mortgagee's  possession.^  The  subsequent  acceptance  of  it  by  the 
mortgagee  ratifies  the  act  and  gives  it  effect  from  the  time  it  was 
filed  for  record.^ 

86.  A  mortgage  made  for  the  purpose  of  being  sold  is  not  a 
lien  in  the  mortgagee's  hands  as  against  subsequent  purchasers  or 
lien  creditors,  except  from  the  time  the  advances  are  actually  made 
upon  it,  either  by  the  mortgagee  or  his  assignee.  An  engagement 
on  the  part  of  the  mortgagee,  or  another,  to  advance  the  money  in 
the  future,  would  be  a  consideration  for  the  making  of  it  sufficient 
to  support  it  against  other  liens  from  the  time  of  its  delivery  and 
record.  An  assignee  who  has  notice  that  the  mortgage  was  origi- 
nally given  without  consideration,  for  the  purpose  of  raising  money 
by  a  subsequent  sale  of  it,  is  put  upon  inquiry  as  to  whether 
there  were  any  liens  intervening  between  its  date  and  his  pur- 
chase. The  fact  that  the  mortgagor  negotiates  the  sale  of  the 
mortgage  is  a  circumstance  that  should  put  the  purchaser  upon 
inquiry.'^ 

Where  a  mortgage  was  made  for  the  purpose  of  raising  money 
for  the  mortgagor,  and  was  recorded  without  any  delivery  to  the 
nominal  mortgagee,  and  before  it  was  assigned  and  delivered  to  one 
who  subsequently  bought  it  another  person  acquired  a  lien  upon 
the  mortgaged  premises,  the  latter  was  held  to  have  priority.  The 
mortgage  in  such  case  has  life  and  validity  only  from  the  time  of 
its  assignment  and  delivery  to  the  assignee  for  value ;  and  it  can 
have  no  retroactive  operation  so  as  to  prejudice  others  who  have 
acquired  rights  in  the  mean  time.  It  is  immaterial  in  this  re- 
spect that  the  assignee,  before  taking  the  assignment,  required 
and  obtained  from  the  mortgagor  an  afiidavit  that  the  mortgagee 
advanced  the  whole  sum  of  principal  secured  by  the  mortgage 
without  abatement,  and  that  there  was  no  off-set,  or  defence  to 
it.6 

1  Adams  v.  Johnson,  41  Miss.  258.  ^  Carnall  v.  Duvall,  supra. 

2  Haskill  V.  Sevier,  2.5  Ark.  152;  Car-        *  Mullison's  Appeal,  68  Penn.  St.  212. 
nail  V.  Duvall,  22  Ark.  136.  6  Schafer  v.  Reillj,  50  N.  Y.  61. 

66 


EXECUTION   AND   DELIVERY.  [§§  87-89. 

87.  A  delivery  in  escrow  is  svLfficient,  and  the  fact  that  the 
depositary  was  at  the  time  an  agent  of  the  mortgagee,  or  where 
the  mortgagee  is  a  corporation  the  fact  that  he  was  then  a  direc- 
tor of  it,  does  not  prevent  his  holding  in  escrow.^ 

A  mortgage  and  note  placed  in  the  hands  of  a  third  person,  to 
be  delivered  to  the  mortgagee  upon  the  happening  of  a  certain 
event,  and  delivered  by  him  without  authority,  without  waiting  for 
such  event,  are  invalid,  and  cannot  be  enforced  even  by  a  bond  fide 
holder  for  value.^  There  is  in  such  case  no  delivery  of  the  note 
and  mortgage,  and  they  have  never  had  a  legal  existence.  A 
promissory  note,  although  it  be  negotiable,  can  have  no  legal  incep- 
tion without  a  delivery  of  it ;  and  the  rules  of  commercial  paper 
do  not  apply  in  such  case  ;  these  can  operate  only  after  the  paper 
has  a  valid  existence.  As  in  the  case  of  a  forged  note,  or  of  one 
purloined  from  the  maker,  the  inquiry  goes  back  of  all  considera- 
tions of  negotiability,  and  the  effect  of  that,  to  the  existence  of  the 
paper  as  a  legal  obligation. 

A  mortgage  executed  without  consideration,  and  deposited  in 
escrow  to  await  the  performance  of  conditions  which  would  make 
a  consideration  for  it,  cannot  be  made  operative  by  a  fraudulent 
delivery  before  the  performance  of  the  conditions,  and  without  the 
mortgagor's  consent.  The  mortgage  in  such  case  never  becomes 
operative  at  all.     It  is  void  from  the  beginning.^ 

88.  Acceptance  of  cestui  que  trust  presumed.  —  In  the  exe- 
cution of  a  trust  deed  to  secure  a  debt  it  is  not  necessary  that  the 
cestui  que  trust  should  sign  it,  or  in  any  way  assent  to  it  in  writ- 
ing.* The  deed  passes  the  legal  title  as  soon  as  it  is  executed  by 
the  grantor  and  trustee,  and  can  be  avoided  only  by  the  dissent, 
express  or  implied,  of  the  creditor. 

89,  The  date.  —  A  mortgage  is  not  invalid,  although  it  is  not 
dated,  or  has  a  false  date,  or  an  impossible  one,  as,  for  instance, 
February  30th,  provided  the  real  day  of  its  date  or  delivery  can 
be  proved.  The  date,  being  no  part  of  the  substance  of  the  deed, 
may  be  contradicted.     It  is  said  in   some  cases  that  there  is  a 

1  Andrews  v.  Thayer,  30  Wis.  228.  Burson  v.  Huntington,  21  Mich.  415 ;  An- 

2  Cliipman  i'.  Tucker,  38  Wis.  43,  and     drews  v.  Thayer,  30  Wis.  228. 

cases  cited;  S.  C.  20  Am.  R.  1.  *  Skipwith    v.   Cunningham,   8    Leigh 

*  Powell  V.  Conant,  33  Mich.  396.     See     (Va.),  271. 

67 


§  90.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

presumption  that  a  mortgage  was  executed  and  delivered  on  the 
day  of  its  date,  arising  from  the  due  execution,  acknowledgment, 
and  record  of  it.^  If  the  date  of  the  mortgage  be  later  than  that 
of  the  acknowledgment,  it  may  be  shown  that  the  date  of  the  ac- 
knowledgment is  erroneous,  and  that  the  mortgage  was  not  ac- 
knowledged until  after  it  was  executed.^ 

6.  Filling  Blanks^  Making  Alterations,  and  Reforming. 

90.  The  filling  of  blanks  after  execution.  —  A  blank  form  of 
mortgage  signed  and  acknowledged,  and  afterwards  filled  up  in 
the  signer's  absence  by  another  person  without  written  authority, 
so  as  to  make  it  a  mortgage  on  land  owned  by  the  person  signing 
the  paper,  is  not  a  deed  in  writing  valid  to  pass  an  estate  in  land 
under  the  statute  of  frauds.^  The  ancient  doctrine  of  the  common 
law,  as  stated  in  Sheppard's  Touchstone,^  is,  that  "  Every  deed 
well  made  must  be  written  ;  i.  e.  the  agreement  must  be  all 
written  before  the  sealing  and  delivery  of  it ;  for  if  a  man  seal 
and  deliver  an  empty  piece  of  paper  or  parchment,  albeit  he  do 
therewithal  give  commandment  that  an  obligation  or  other  matter 
shall  be  written  in  it,  and  this  be  done  accordingly,  yet  this  is  no 
good  deed."  This  remains  the  law  in  England,^  and  is  generally 
supported  by  the  authorities  in  this  country.^ 

1  Lyon  V.  Mcllvaine,  24  Iowa,  9  ;  Sea-     requisite   for  the   filling   up   of    material 
vey  V.  Browning,  18  Iowa,  246.  blanks  in  a  deed  after  execution  is  declared 

2  Hoit  V.  Russell,  56  N.  H.  559.  in  :  — 

8  Ayres  I!.  Probasco,  14  Kans.  175,  and  Arkansas:    Cross    v.    State  Bank,   5 

cases  cited.  Pike,  525. 

*  Page  54.  California  :  Upton  v.  Archer,  41  Cal. 

6  Hi bble white  v.  M'Morine,  6  M.  &  W.  85. 

200;  Davidson  v.  Cooper,  11    M.  &  W.  Georgia:  Ingram  u.  Little,  14  Ga.  173. 

793.     These  cases  distinctly  overrule  Tex-  Illinois  :  People  v.  Organ,  27  111.  27. 

ira  V.  Evans,  cited  and  stated  by  Wilson,  Kansas  :  Ayers  v.  Probasco,  14  Kans. 

J.,  in  Master  v.  Miller,  1    Anstr.  225,  as  175. 

follows  :   Evans   wanted  to   borrow  £400,  Kentucky  :  Cummins  v.  Cassily,  5  B. 

or  so  much  of  it  as  his  credit  should  be  Mon,  74. 

able  to  raise  ;  for  this  purpose  he  executed  Massachusetts  :  Burns   v.   Lynde,  6 

a  bond,  with  blanks   for  the  name  and  Allen,  305. 

sum,  and  sent  an  agent  to  raise  money  on  JIaryland  :   Byers  v.  McClanahan,  6 

the  bond  ;  Texira  lent  £200  on  it,  and  the  Gill  &  J.  250. 

agent  accordingly  filled  up  the  blanks  with  Mississippi:  Williams  v.  Crutcher,  5 

that  sum  and  Texira's  name,  and  deliv-  How.  71. 

ered  the  bond  to  him.     On  non  est  factum,  North  Carolina  :  Graham  v.  Holt,  3 

Lord  Mansfield  held  it  a  good  deed.  Ired.  L.300. 

"  The  doctrine  that  written  authority  is  Ohio  :  Ayres  v.  Harness,  1  Ohio,  3  68. 
68 


FILLING  BLANKS,  MAKING  ALTERATIONS,  AND  REFORMING.      [§  90. 


"  The  filling  of  the  blanks,"  said  j\Ir.  Justice  Chapman  in  a 
case  in  which  this  rule  of  the  common  law  was  asserted  by  the  Su- 
preme Court  of  Massachusetts,^  "  created  the  substantial  parts  of 
the  instrument  itself  ;  as  much  so  as  the  signing  and  sealing.  If 
such  an  act  can  be  done  under  a  parol  agreement,  in  the  absence 
of  the  grantor,  its  effect  must  be  to  overthrow  the  doctrine  that 
an  authority  to  make  a  deed  must  be  given  by  deed.  We  do  not 
think  such  a  change  of  the  ancient  common  law  has  been  made 
in  this  commonwealth,  or  that  the  policy  of  our  legislation  favors 
it,  or  that  sound  policy  would  dictate  such  a  change.  Our  stat- 
utes, which  provide  for  the  conveyance  of  real  estate  by  deed,  ac- 
knowledged and  recorded,  and  for  the  acknowledgment  and  record- 
ing of  powers  of  attorney  for  making  deeds,  are  evidently  based 


Tennessee  :  Gilbert  v.  Antlion}',  1 
Yerg.  69;  Mosby  v.  State  of  Ark.  4 
Sneed,  324. 

Virginia  :  Preston  v.  Hull,  23  Gratt. 
600. 

But  the  autlioritj  of  'I'exira  v.  Evans 
has  been  adopted  by  some  authorities  in 
this  country  :  Ex  parte  Kerwin,  8  Cow. 
(N.  Y.)  118;  Chauncy  v.  Arnold,  24  N. 
Y.  330,  where  the  earlier  cases  in  New 
York  are  cited  ;  and  although  the  doctrine 
of  Tcxira  v.  Evans  is  spoken  of  by  Mr 
Justice  Smith  as  the  settled  doctrine  in 
that  state,  yet  Mr.  Justice  Denio  speaks 
with  apparent  approval  of  the  English 
cases  overruling  the  "  looser  doctrine  "  of 
that  case.  In  the  case  before  the  court 
the  question  whether  the  mortgagee's 
name  could  be  filled  in  by  one  acting  for 
the  mortgagor,  under  parol  authority,  was 
left  undecided ;  for  in  that  case  the  name 
of  the  lender  was  not  filled  in  at  all ;  and 
it  was  held  that  the  mortgage  was  inef- 
fectual as  security  in  the  hands  of  one 
who  had  advanced  money  upon  it  in  that 
condition.  See,  also,  Campbell  v.  Smith, 
8  Hun  (N.  Y.),  6. 

The  authority  of  Texira  v.  Evans  has 
also  been  followed  in  South  Carolina  : 
Duncan  v.  Hodges,  4  McCord  (S.  C), 
239. 

It  was  followed  in  the  earlier  cases  in 
Pennsylvania  :  Wiley  v.  Moore,  17  S.  & 
R.  438;  but  in  Wallace  v.  Harmstad,  15 


Penn.  St.  462,  Chief  Justice  Gibson  said 
that  Texira  v.  Evans  could  only  be  sus- 
tained on  the  ground  that  the  obligor  had 
estopped  himself  by  an  act  in  puis  ;  which 
is  in  effect  to  wholly  discard  the  doctrine 
of  the  case. 

There  is  a  dictum  by  Mr.  Justice  Nel- 
son, of  the  Supreme  Court  of  the  United 
States,  followed  by  Wagner,  J.,  in  Mis- 
souri, that  a  person  competent  to  convey 
real  estate  may  sign  a  deed  in  blank  and 
authorize  an  agent  to  fill  it  up  ;  but  it  was 
held  in  both  cases  that  a  married  woman 
could  not  make  such  a  conveyance  of  her 
separate  estate,  having  no  authority  to 
delegate  such  powers.  Mc-Quie  v.  Peay, 
58  Mo.  56  ;  Drury  v.  Foster,  2  Wall.  24. 

It  is  followed,  also,  in  Wisconsin  :  Van 
Etta  V.  Evanson,  28  Wis.  33  ;  Vliet  v. 
Camp,  13  Wis.  198. 

In  Van  Etta  v.  Evanson,  supra,  where 
it  was  held  that  the  name  of  the  mort- 
gagee might  be  filled  in  by  an  agent,  after 
the  execution  of  the  mortgage,  the  ground 
was  taken  that  the  fact  of  the  delivery  of 
the  paper  to  the  agent  suflBciently  showed 
the  intention  that  he  should  supply  the 
name  of  the  person  who  might  take  the 
mortgage. 

Indiana  :  Richmond  Manufacturing 
Co.  V.  Davis,  7  Blackf.  (Ind.)  412. 

Maine  :  South  Berwick  v.  Huntress, 
53  Me.  89,  where  many  cases  are  cited. 

1  Burns  v.  Lynde,  6  Allen  (Mass.),  305. 

69 


§  91.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

on  the  ancient  doctrines  of  the  common  law  respecting  the  execu- 
tion of  dee,ds  ;  and  a  valuable  and  important  purpose  which  these 
doctrines  still  serve  is,  to  guard  against  mistakes  which  are  likely 
to  arise  out  of  verbal  arrangements,  from  misunderstanding  and 

defect  of  memory,  even  where  there  is  no  fraud If  this 

method  of  executing  deeds  is  sanctioned,  it  will  follow  that, 
though  the  defendant  has  a  regularly  executed  deed,  yet  it  re- 
mains to  be  settled  by  parol  evidence  whether  he  ought  to  have 
been  the  grantee,  what  land  should  have  been  described,  whether 
the  deed  should  have  been  absolute  or  conditional,  and  if  condi- 
tional, what  the  terms  of  the  condition  should  have  been.  To 
leave  titles  to  real  estate  subject  to  such  disputes  would  subject 
them  to  great  and  needless  insecurity." 

91.  Written  authority  essential  for  fiUing  any  material 
blank.  —  This  doctrine  respecting  the  execution  of  deeds  applies 
as  well  to  the  filling  up  of  any  blanks  left  in  them  which  mate- 
rially affect  their  meaning  and  operation.  If  any  such  blanks  be 
filled  after  execution  by  another  person  having  only  verbal  au- 
thority, unless  the  instrument  be  redelivered  and  acknowledged 
anew,  it  is  void.  Such  authority  to  another  to  fill  up  an  instru- 
ment or  any  material  part  of  it  after  its  execution  is  sufficient  in 
case  of  a  simple  contract,  but  not  for  filling  up  a  sealed  instru- 
ment. The  stream  can  never  rise  higher  than  its  source.  Au- 
thority to  make  an  instrument  under  seal,  or  to  affix  a  seal  to  it, 
must  be  given  by  an  instrument  of  equal  authority.^ 

Accordingly  it  is  held  that  the  name  of  the  grantee  or  mort- 
gagee cannot  be  properly  filled  in  after  execution  of  the  instru- 
ment. 

Where  the  mortgagor  after  the  execution  of  the  deed  by  his 

^  Upton  I'.  Archer,  41  Cal.  85.  of  the  deed  ?  If  we  once  depart  from  the 
In  a  case  recently  before  the  Court  of  rule,  how  is  the  line  to  be  drawn  consist- 
Appeals  in  Virji-inia  (Preston  v.  Hull,  23  ently  with  the  preservation  of  any  rule  at 
Gratt.  600),  where  the  fillino:  in  of  the  all  ?  If  we  say  that  the  name  or  sum  may 
name  of  an  obligee  in  a  bond,  after  the  be  inserted  by  the  agent,  will  it  not  lead 
execution  of  it,  was  held  to  render  it  in-  us  inevitably  to  the  doctrine  that  the  en- 
valid,  the  doctrine  of  the  text  was  fully  tire  deed  may  be  executed  by  the  agent 
declared.  Upon  the  point  under  consider-  also.  We  shall  be  carried  on  step  by  step, 
ation  Mr.  Justice  Staples  said  :  "If  the  if  we  mean  to  be  consistent,  until  we  have 
name  of  the  obligee  may  be  inserted,  why  destroyed  all  the  well  settled  distinctions 
may  not  the  sum  also  ;  and  if  these  may  between  sealed  and  unsealed  instruments." 
be  supplied,  why  not  the  more  formal  parts 

70 


FILLING  BLANKS,  MAKING  ALTERATIONS,  AND  REFORxMING.    [§§  92,  93. 

wife,  without  her  knowledge,  inserts  the  description  of  additional 
property,  the  mortgage  is  a  valid  lien  upon  the  property  originally 
covered  by  it ;  and  though  it  would  ordinarily  be  valid  as  to  the 
additional  property  against  the  husband,  it  is  not  so  when  the 
additional  property  is  a  homestead,  for  the  conveyance  of  which 
it  is  necessary  that  husband  and  wife  should  join.^ 

92.  Mortgagor  may  be  estopped  from  taking  advantage  of 
the  irregularity.  —  It  frequently  happens  that  a  mortgagor  whose 
deed  has  been  filled  up  after  its  execution  by  some  one  not  au- 
thorized in  writing  will  be  estopped,  by  his  acts  in  relation  to  the 
transaction,  from  claiming  that  it  is  void.  But  the  mere  fact  that 
he  has  enjoyed  the  benefit  of  the  money  obtained  upon  it,  or  a 
portion  of  the  money,  is  not  by  itself  a  sufficient  ground  upon 
which  to  found  an  equitable  estoppel.  Thus  where  a  deed  was  so 
filled  up  and  delivered  to  the  grantee,  who  was  ignorant  of  any 
irregularity  in  the  execution  of  it,  and  the  grantors  being  fully  ad- 
vised of  the  delivery  of  the  deed  permitted  the  grantee  to  enter 
into  possession  and  make  improvements,  and  became  his  tenants 
and  paid  him  rent,  they  were  not  allowed  to  claim  that  the  deed 
was  void  by  reason  of  such  irregularity .^ 

93.  When  estoppel  may  be  set  up.  —  A  mortgagee  invoking 
the  aid  of  estoppel  must  show  that  he  has  been  vigilant  and  care- 
ful in  the  protection  of  his  own  rights  and  interests.  No  protec- 
tion will  be  given  him  against  his  own  negligence  and  folly.^  To 
avail  himself  of  the  acts  or  admissions  of  the  mortgagor,  he  must 
have  been  ignorant  of  the  irregularity  in  the  execution  of  the 
mortgage,  and  must  have  taken  it  with  good  reason  to  suppose  it 
was  properly  executed. 

Moreover,  the  subsequent  acts  of  the  mortgagor  are  no  admis- 

1  Van  Horn  v.  Bell,  11  Iowa,  463.  knew  that  the  mortgage  was  executed  in 

2  Knaggs  V.  Mastin,  9  Kans.  532.  blank  and  afterwards  filled  up  in  the  ab- 

3  Ayrcs  v.  Probasco,  14  Kans.  175.  Mr.  sence  of  the  wife,  whose  land  it  was  in- 
justice Valentine  said  :  "  Where  a  person  tended  to  mortgage,  inasmuch  as  the  deed 
negligently  or  knowingly  puts  it  within  was  filled  up  in  the  agent's  presence, 
the  power  of  some  other  person  to  swindle  When  the  mortgage  so  executed  was  of- 
and  defraud  him,  and  he  is  thereby  swin-  fered  to  him  he  should  have  said  :  "I know 
died  and  defrauded,  he  is  generally  allowed  that  mortgage  is  void,  as  a  mortgage  of 
to  suffer  the  consequences  of  his  own  neg-  Mrs.  Ayres  ;  I  will,  therefore,  not  receive 
ligence  and  folly."  In  the  case  before  the  it.  You  must  furnish  me  abetter  mort- 
court,  the  mortgagee,  through  his  agent,  gage  if  you  want  the  money." 

71 


§§  94,  95.]        FORM   AND  REQUISITES   OF   A   MORTGAGE. 

sion  or  ratification  of  the  giving  of  the  mortgage,  unless  the  facts 
of  the  transaction  be  known  to  him.^  He  cannot  ratify  a  thing 
that  he  does  not  know  the  existence  of,  and  cannot  be  estopped  by 
acts  he  never  performed. 

94.  A  material  alteration  of  a  mortgage  made  without  the 
consent  of  the  mortgagor  by  the  holder  of  it,  or  by  any  one  after 
delivery,  and  while  in  the  possession  or  custody  of  the  rightful 
owner  of  it,  has  the  effect  of  destroying  and  annulling  the  instru- 
ment as  between  the  parties  to  it.^  An  alteration  by  a  mere 
stranger  without  the  knowledge  or  consent  of  the  holder,  and 
while  it  is  out  of  his  custody,  does  not  have  this  effect.^  This 
principle  was  applied  to  making  void  a  mortgage  altered  under 
the  following  circumstances :  A  married  woman  being  the  owner 
of  a  house  and  lot,  known  as  lot  H,  executed  a  mortgage  to  secure 
her  husband's  debt,  in  consideration  of  the  extension  of  the  time 
of  payment.  The  mortgage,  however,  did  not  describe  her  prop- 
erty, but  described  a  lot  known  as  lot  26.  After  the  delivery  of 
the  deed  the  error  was  discovered,  and  the  mortgagee's  attorney 
took  the  mortgage  to  the  husband  and  his  attorney  for  correction. 
The  words,  "  being  the  same  property  conveyed  to  party  of  the 
first  part,"  &c.,  describing  the  deed  to  the  mortgagor  of  lot  H, 
were  added  to  the  description  contained  in  the  mortgage,  by  the 
husband's  attorney,  in  the  presence  of  the  attorney  of  the  mort- 
gagee, without  consulting  the  wife  in  regard  to  the  alteration,  and 
she  had  no  knowledge  of  the  change  until  suit  was  brought  to 
reform  and  foreclose  the  mortgage.  It  was  held  that  the  suit 
could  not  be  maintained  for  either  purpose.* 

95.  An  alteration  of  an  instrument  which  does  not  change 
its  legal  eflfect  does  not  in  law  amount  to  an  alteration,  and  of 
course  does  not  invalidate  it  either  at  law  or  in  equity.^  An  al- 
teration which  does  change  the  legal  effect  of  the  deed  may  at  any 

^  In   the    same  case,   in  illustration  of  performed  an  act  which  could  be  construed 

this  point,  the  same  justice  said  :  "  There  into  a  ratification  of  the  instrument." 

is  no  evidence  showing  that  Mrs.  Ayrcs  -  Marcy   v.   Dunlap,    5  Lans.  (N.  Y.) 

ever  beforehand  authorized  said  mortgage  365. 

to  be  filled  up  as  it  was  in  fact  filled  up,  ^  Marcy  v.  Dunlap,  supra,  per  Johnson, 

or  ever  afterward  knew  that  the  same  was  J.,  and  cases  cited, 

so  filled  up,  or  ever  knew  that  it  was  deliv-  *  Marcy  v.  Dunlap,  supra. 

ered  to  Probasco  as  the  mortgagee,  or  ever  ^  Goodenow  v.  Curtis,  33  Mich.  505. 

72 


FILLING  BLANKS,  MAKING  ALTERATIONS,  AND  REFORMING.      [§  96. 

time  be  made  by  consent  of  both  pai'ties  to  it ;  thus  it  has  been 
held,  that  authority  given  in  a  mortgage  to  the  recorder  to  in- 
sert a  portion  of  the  description  omitted,  when  it  couhl  be  ob- 
tained, is  equivalent  to  a  power  of  attorney  to  make  such  addition, 
and  that  a  subsequent  incumbrancer  could  not  object  to  the  exer- 
cise of  this  power.^  It  would  seem,  nevertheless,  that  the  descrip- 
tion given  in  the  mortgage  to  warrant  such  a  filling  up  must  be 
sufficient  to  indicate  the  property  to  be  described  with  such  cer- 
tainty that  the  lien  upon  it  would  exist  without  such  further  de- 
scription. 

A  mortgage  is  not  rendered  invalid  by  the  grantee's  fraudulently 
adding  the  name  of  the  mortgagor's  wife  in  release  of  dower.^  It 
is  valid  as  against  the  husband  without  the  wife's  signature.  The 
title  to  the  property  passes  and  vests  in  the  grantee  by  the  execu- 
tion of  the  deed,  and  the  subsequent  alteration  or  destruction  of 
the  instrument  does  not  affect  this  title. 

96.  The  terms  of  a  mortgage  cannot  be  varied  by  any  verbal 
agreement,  or  understanding  of  the  parties,  anterior  to  the  execu- 
tion of  it.  It  cannot  rest  partly  in  writing  and  partly  in  parol. 
No  evidence  of  the  acts  or  conversation  of  the  parties  prior  to  the 
execution  of  the  mortgage,  or  at  the  time  of  it,  can  be  admitted  to 
contradict  or  vary  the  instrument.^ 

The  fact  that  a  mortgagor  before  the  signing  of  the  mortgage 
objected  to  the  terms  of  it,  and  desired  to  reserve  a  certain  portion 
of  the  property  included  in  it,  cannot  be  received  to  vary  the 
effect  of  it.'*  Even  an  agreement  of  the  parties,  at  the  time  of 
the  execution  of  the  mortgage,  that  it  should  not  be  a  lien  upon 
certain  portions  of  the  property  included  in  it,  would  have  no 
effect  against  the  terms  of  it. 

The  terms  of  the  mortgage  may,  however,  be  varied  by  a  writ- 
ten agreement  executed  at  the  time  of  the  mortgage.     Such  an 

1  Harshey  v.  Blackmarr,  20  Iowa,  161.  lands  are  obtained,  we    agree   that   they 

The  description  was  as  follows  : —  shall  be  inserted  iu  this  deed,  as  our  vol- 

"  We,  J.  L.  Blackmarr  and  Belinda  (his  untary  act,  and  the  recorder  of  JIarshall 

wife),  sell  and  convey  nnto  John  Harshey,  County  is  instructed  to   do  the  same  for 

&c.,  the  following  described  premises,  in  us." 

Marshall    County,  Iowa,    to  wit:  eighty  '-  Kendall  v.  Kendall,  12  Allen  (Mass.), 

acres  of  land,  bought  of  Rev.  James  I\I.  92. 

Holland,  lying  two  miles  southward  from  ^  Quartermous  v.    Kennedy,    29    Ark. 

Marshalltown,  in  Marshall  County,  Iowa  ;  544. 

and  so  soon  as  the  numbers  of  the  above  *  Patterson  ?•.  Taylor,  15  Fla.  336. 

73 


§§  97,  98.]  FORM   AND   REQUISITES   OF   A   MORTGAGE. 

agreement  then  becomes  in  fact  a  part  of  the  mortgage,  and  the 
two  instruments  must  be  construed  together.^ 

97.  Reforming  the  mortgage.  —  Whenever  there  has  been  a 
material  omission  or  mistake  in  the  deed,  so  tliat  it  fails  to  express 
what  the  parties  intended,  a  court  of  equity  may,  as  between 
the  parties,  reform  and  correct  it  in  accordance  with  the  transac- 
tion as  it  was  actually  agreed  upon.^  Thus,  for  instance,  when 
part  of  the  lands  agreed  to  be  mortgaged  were  omitted  in  the 
mortgage  deed,  it  may  be  so  reformed  as  to  include  them.^  And 
so,  on  the  other  hand,  if  by  mistake  it  include  land  not  belonging 
to  the  grantor,^  or  other  land  of  his  not  intended  to  be  included, 
the  description  may  be  reformed. 

When  a  mistake  is  clearly  shown,  a  claim  by  the  adverse  party 
of  misapprehension  on  his  part  will  not  be  regarded.^  A  material 
mistake  in  any  part  of  the  deed,  as  for  instance  in  the  condition, 
may  be  reformed.^  But  the  court  will  not  correct  a  mere  error 
of  statement  as  to  the  origin  of  the  mortgagor's  title,  when  the 
deed  is  effectual  as  it  stands.'^ 

The  court  will  not  reform  a  deed  so  as  to  add  to  it  a  new  con- 
dition not  contemplated  by  one  of  the  parties  in  the  execution 
of  it;^  it  will  not  make  it  include  what  was  intended  by  one 
party  unless  it  appear  that  the  other  party  at  the  time  had  the 
same  intention  ;  or  unless  the  other  party  fraudulently  induced 
him  to  believe  the  mortgage  contained  what  he  asks  to  have  it 
made  to  include  ;  as  where  the  mortgagor  by  false  and  fraudulent 
representations  induced  the  mortgagee  to  believe,  when  he  loaned 
the  money  and  accepted  the  mortgage,  that  it  covered  more  and 
other  land  and  buildings  than  it  did,  the  mortgage  was  reformed, 
and  enforced  against  the  lands  fraudulently  omitted.^ 

98.  Who  may  obtain  reformation.  —  A  mortgagee  who  has 
sold  the  note  and  mortgage,  and  afterwards   bought  them  back 

1  Pitzer  V.  Burns,  7  W.  Va.  63.  »  Hart  v.  Hart,  23  Iowa,  599,  where  the 

2  Anderson  v.  Baughman,  7  Mich.  69 ;  court  refused  to  reform  a  mortgage  for 
Looniis  V.  Hudson,  18  Iowa,  416.  support,  so  as  to  require  the  mortgagee  to 

8  Blodgett  V.  Hobart,  18  Vt.  414.  live  at  a  particular  place. 

*  Kuhiing  V.  Hackett,  1  Nev.  360.  9  De  Peyster  v.  Hasbrouck,   11   N.  Y. 

s  Wooden?;.  Ilaviland,  18  Conu.  101,  582;  and  see  Rider  v.  Powell,  28  N.  Y. 

«  Wooden  V.  Ilaviland,  supra.  310. 

^  Hathaway  v.  Juneau,  15  Wis.  262. 

74 


FILLING  BLANKS,  MAKING  ALTERATIONS,  AND  REFORMING.       [§  99. 

again,  has  the  same  right  to  have  a  mistake  corrected  as  he  had 
before  he  made  the  transfer,  if  he  indorsed  the  note  at  the  time  of 
the  sale.^  He  may  have  the  mistake  corrected  upon  its  discovery 
for  the  first  time  after  he  has  purchased  the  land  under. a  foreclos- 
ure sale,  and  taken  possession  as  purchaser.^  But  the  court  will 
not  reform  a  description  in  a  mortgage  deed  at  the  suit  of  another 
who  has  become  purchaser  at  a  sale  by  the  mortgagee.^ 

The  party  desiring  a  reform  of  a  deed  should  bring  a  bill  in 
equity  for  the  purpose.  A  mortgagor  cannot  ask  for  this  relief 
in  answer  to  a  bill  to  foreclose  ;  but  he  may  file  a  cross-bill.* 
The  mortgagee  may  ask  for  a  reformation  of  the  mortgage  in  a 
bill  to  foreclose  it.^ 

"  The  proof  of  mistake  must  be  clear  and  certain  before  an  in-, 
strument  can  be  reformed  ;  as  the  object  of  the  reformation  of  an 
instrument  is  to  make  it  express  what  the  mind  of  the  parties  to 
it  had  met  upon,  and  what  they  intended  to  express,  and  supposed 
they  had  expressed,  in  the  writing.  Unless  this  meeting  of  minds, 
and  mistake  in  expressing  it,  is  made  quite  clear  and  certain  by 
evidence,  the  court,  should  it  undertake  to  reform,  might,  under 
color  of  reformation,  make  a  contract  for  the  parties  which  both 
never  assented  to,  or  intended  to  make."  ^ 

99.  Against  whcra  it  may  be  had.  —  A  mistake  in  the  de- 
scription of  the  land  may  be  corrected  as  between  the  parties,  but 
courts  of  equity  can  grant  no  relief  as  against  one  who  has  pur- 
chased the  property  in  good  faith  and  for  a  valuable  consideration  ; 
and  consequently  a  bill  which  seeks  to  do  this  is  defective,  when  it 
fails  to  allege  that  the  purchaser  took  the  land  with  notice  of  the 
mistake.'^  It  is  obvious,  however,  that  a  purchaser  with  notice 
stands  in  no  better  position  than  the  mortgagor  himself.^  As 
against  a  purchaser  at  an  execution  sale,  notice  of  the  mistake  be- 
fore or  at  the  sale  is  sufficient.^ 

But  it  may  be  reformed  as  against  a  junior  mortgagee,  whose 

1  Kennard  v.  George,  44  X.  H.  440.  ''  Sickmon  v.  Wood,  69  El.  329. 

2  Davenport  v.  Sovil,  6  Ohio  St.  459.  ^  Rutgers  v.  Kingslaud,  7  N.  J.  Eq.  (3 
8  Haley  r.  Bagley,  37  Mo.  363.  Hals.)  178,  658;  Fiedler  v.  Vamer,  45 
*  French  v.  Griffin,  18  N.  J.  Eq.  279.  Ala.   429;    Ruhling    v.   Hackett,    1   Ner. 

5  Alexander  V,  Rea,  50  Ala.  450;  Mil-  360;    Strang    v.     Beach,    11     Ohio     St. 
ler  ).'.  Kolb,  47  Ind.  220.  283. 

6  Per  Johnson,  J.,  in  Marcy  v.  Dunlap,  ^  Williams  v.  Hatch,  38  Ala.  338. 
5  Lans.  (N.  Y.)  365,  370. 

75 


§§  100,  101.]      FORM   AND   REQUISITES   OF   A   MORTGAGE. 

mortgao-e  was  taken,  witliout  notice  of  such  a  mistake,  as  security 
for  an  antecedent  debt,  without  the  surrender  of  any  old  security, 
and  without  any  new  consideration  moving  from  him.^  The  mis- 
take may  be  corrected  too  against  a  subsequent  judgment  creditor  ;2 
but  not  against  a  purchaser  of  a  subsequent  judgment,  who  has  in- 
vested his  money  in  the  purchase  of  the  judgment  upon  the  faith 
of  the  apparent  hen  upon  the  hmd.^  The  equity  of  the  mortgagee 
is  regarded  as  stronger  than  that  of  the  judgment  creditor,  who 
has  not,  probably,  parted  with  his  money  on  the  faith  of  the  ap- 
parent facts.  But  when  the  judgment  has  been  sold  and  assigned 
to  one  ignorant  of  the  mistake  in  the  mortgage,  and  who  has  ex- 
pended his  money  upon  the  faith  of  the  rights  of  the  parties  as 
they  appear  in  the  respective  securities,  it  is  not  considered  that 
there  is  any  superior  equity  in  the  mortgagee.^ 

100.  On  proof  of  the  loss  of  a  mortgage  deed  without  record 
of  it  having  been  made,  the  court  may,  under  ordinary  circum- 
stances, decree  the  making  of  a  new  mortgage.^  This  may  be 
the  only  adequate  remedy,  and  without* it  the  mortgagee  may  be 
exposed  to  the  total  loss  of  his  security.  The  loss  of  deeds  is  a 
familiar  ground  of  equitable  relief. 

101.  Principles  of  construction.  —  One  principle  of  construc- 
tion applicable  to  mortgages  is,  that  inasmuch  as  the  mortgagor  is 
supposed  to  make  his  own  selection  of  words  and  terms  in  draw- 
ing the  deed,  whenever  its  language  is  equivocal  or  ambiguous,  to 
construe  it  most  strongly  against  him,  and  in  such  manner  as  to 
make  it  a  valid  and  binding  security.*^ 

Another  principle  of  construction  is,  that  the  intention  of  the 
parties  as  gathered  from  the  instrument  is  to  govern,  if  the  inten- 
tion be  such  that  it  may  be  legally  enforced.  "  There  is  no  doubt 
that  the  intention  is  the  object  to  be  sought  for  in  construction. 
And  to  get  at  that,  the  situation  of  the  parties,  and  the  nature 
and  object  of  their  transactions,  may  be  looked  at.     But  it  must 

1  Busenbarke  v.  Ramey,  53  Ind.  499.  Van  Thorniley  r.  Peters,  26  Ohio  St.  471  ; 

2  Sample  v.  Rowe,  24  Ind.  208 ;  White  White  v.  Denman,  1  dhio  St.  110;  16 
V.  Wilson,  G  Blackf.  (Ind.)  448.  Ohio,  59  ;  Hood  v.  Brown,  2  Ohio,  266. 

8  Flanders  v.  O'Brien,  46  Ind.  284.  ^  Lawrence  v.  Lawrence,  42  N.  H.  109, 

*  Flanders  v.  O'Brien,  supra.  and  cases  cited. 

The  rule  is  otherwise,  however,  in  Ohio ;        «  Jerome  v.  Hopkins,  2  Mich.  96,  100. 

76 


FILLING  BLANKS,  MAKING  ALTERATIONS,  AND  REFORMING.      [§  101. 

be  borne  in  mind  that  it  is  not  the  business  of  construction  to  look 
outside  of  the  instrument  to  get  at  the  intention  of  the  parties, 
and  then  carry  out  that  intention  whether  the  instrument  contains 
huiguage  sufficient  to  express  it  or  not ;  but  the  sole  duty  of  con- 
struction is  to  find  out  what  was  meant  by  the  language  of  the 
instrument."  ^ 

1  Paine,  J.,  in  Farmers'  Loan  &  Trust  Co.  v.  Commercial  Bank   of   Racine,   15 
Wis.  424,  438. 

77 


CHAPTER  III. 

THE  PARTIES    TO   A  MORTGAGE. 
PART  I. 

AVHO    MAY    GIVE   A   MORTGAGE. 

102.  Legal  capacity  to  mortgage.  —  In  general,  any  person 
who  has  a  legal  capacity  to  act  for  himself  may  make  a  mortgage 
of  his  property,  or  may  authorize  any  one  else  to  do  this  in  his 
behalf.  By  statutory  provisions  in  many  states,  guardians  or 
others  acting  for  infants,  insane  or  other  persons,  without  legal 
capacity  to  act  for  themselves,  may  be  authorized,  upon  applica- 
tion to  court  showing  sufficient  cause,  to  convey  in  mortgage  the 
real  estate  of  their  wards.  Like  authority  is  sometimes  given  to 
trustees,  executors,  or  administrators,  although  not  having  title  to 
the  property  themselves,  but  only  authority  over  it  for  certain 
purposes,  and  acting  in  a  representative  capacity  in  respect  to  it, 
to  mortgage  it  for  the  benefit  of  the  parties  in  interest.  These 
statutory  mortgages,  as  they  may  be  called,  depend  upon  the  par- 
ticular provisions  authorizing  them,  which  are  too  various  to  be 
given  here.  It  may  be  remarked,  however,  that  this  statutory 
power  must  be  exercised  strictly  for  the  purposes  for  which  it  is 
given,  and  all  the  requirements  of  the  statutes  in  regard  to  obtain- 
ing and  exercising  the  authority  must  be  strictly  followed. 

A  corporation,  if  capable  of  holding  real  estate,  has,  like  a  per- 
son, the  power  of  conveying  it  in  mortgage,  unless  it  is  under 
some  disability  imposed  by  statute.  But  while  a  person  capable 
of  making  a  grant  may,  if  he  choose,  employ  another  to  act  for 
him,  a  corporation  must  always  act  by  an  agent. 

Disabilities  are  either  natural,  as  in  the  case  of,  insane  persons, 
or  legal,  as  in  the  case  of  married  women  and  corporations,  while 
the  disabiUty  of  infancy  is  either  the  one  or  the  other,  according 
to  the  circumstances  of  the  case. 
78 


WHO   MAY   GIVE   A  MORTGAGE.  [§§  103,  104. 

1.    Disability/  of  Insanity. 

103.  A  mortgage  made  by  one  who  was  insane  at  intervals 
both  before  and  after  the  execution  of  it,  as  to  its  vaHdity,  de- 
pends upon  the  question  whether  he  was  sane  at  the  time ;  and 
the  fact  of  his  sanity  must  in  such  case  be  established  by  clear 
and  satisfactory  evidence. ^  If  the  mortgagor  at  the  time  he  exe- 
cuted the  mortgage  comprehended  what  he  was  doing,  and  the 
consequences  of  his  acts,  it  will  be  held  valid,  if  it  be  fair  and  no 
undue  advantage  has  been  taken  of  him,  although  it  may  appear 
probable  that  there  were  times,  previous  to  the  execution  of  the 
mortgage,  when  he  might  not  have  had  sufficient  capacity,  on  ac- 
count of  a  disease  which  would  not  be  uniform  in  its  influence  on 
his  mind.2  But  an  injunction  to  prevent  a  sale  by  a  mortgagee 
was  made  perpetual,  where  it  appeared  that  the  mortgagor  was 
in  a  condition  verging  upon  insanity  through  habitual  drunken- 
ness, and  the  mortgagee,  who  had  complete  power  over  him,  could 
not  show  that  he  had  given  any  valid  consideration  for  the  mort- 

gage.3 

2.  Disability  of  Infancy. 

104.  An  infant's  mortgage  for  purchase  money.  —  An  in- 
fant who  has  purchased  land,  and  given  back  a  mortgage  for  the 
purchase  money  or  a  part  of  it,  may,  upon  coming  of  age,  avoid 
the  transaction  ;  he  may  relinquish  the  property  and  reclaim  the 
money  paid  on  account  of  it.*  But  if  he  seeks  to  avoid  the  debt 
and  mortgage,  he  must  surrender  and  reconvey  the  property.  If 
he  continue  to  hold  the  estate  and  to  apply  it  to  his  own  uses,  he 
affirms  the  mortgage  and  makes  himself  legally  liable  for  its  pay- 
ment.^ The  contract  being  voidable  only,  if  he  wishes  to  disaffirm 
it,  he  must  do  so  promptly  upon  coming  of  age.^  If  he  ratifies 
the  conveyance  to  himself,  he  ratifies  his  mortgage  for  the  pur- 
chase money.  They  constitute  one  transaction,  and  he  cannot 
enjoy  the  one  without  being  bound  by  the  other.'' 

1  Ripley  r.  Babcock,  13  Wis.  425.  11;    Young    v.    McKee,    13   Mich.   552; 

2  Day  V.  Seely,  17  Vt.  542.  Henry  v.  Root,  33  N.  Y.  526,553  ;  Lynde 
8  Van  Horn  v.  Keenan,  28  111.  445.  v.  Budd,  2  Paige  (N.  Y.),  191 ;  Kitchen  v. 
*  Willis  y.  Twombly,  13  Mass.  204.  Lee,  11  lb.  107;  Coutant  v.  Servo.ss,  3 
6  Roberts  v.  Wiggin,  1  N.  H.  73 ;  Rob-  Barb.  (N.  Y.)  128. 

bins  V.  Eaton,  10  N.  H.  561  ;  Badger  v.  ^  Loomer  v.  Wheelwright,  3  Sandf.  (N. 

Phinney,  15  Mass.  359 ;  Callis  v.  Day,  38  Y.)  Ch.  135. 

Wis.  643;  Bigelow  v.  Kinney,  3  Vt.  353;  '  Dana  v.  Coombs,  6  Grecnl.  (Me.)  89; 

Hubbard  v.  Cummings,  1    Greenl.  (Me.)  Heathy.  West,  8  Fost.  (N.  H.)  101. 

79 


§  105.]  THE  PARTIES   TO   A   MORTGAGE. 

He  is  not  allowed  after  coming  of  age  to  try  his  chances  of  gain- 
ing something  by  the  transaction,  and  then,  upon  finding  that  he 
cannot,  to  plead  his  disability.  If  an  action  to  foreclose  the  mort- 
gage be  brought  after  his  coming  of  age,  and  he  allows  a  decree 
of  sale  to  be  entered,  he  cannot  then,  upon  finding  there  is  a  defi- 
ciency instead  of  a  surplus,  escape  liability  for  it  by  setting  up  his 
disability.^ 

105.  Ratification  of  infant's  mortgage.  —  A  mortgage  given 
by  an  infant,  being  as  a  general  rule  voidable  only  and  not  void, 
he  may  on  coming  of  age  ratify  it.  This  he  may. do  in  various 
ways.  The  mere  retaining  possession  of  land,  for  which  he  has 
given  a  mortgage  for  the  purchase  money,  is  a  ratification  of  the 
whole  transaction,  and  makes  him  liable  upon  the  mortgage.^  So 
any  other  mortgage  for  his  benefit  he  may  on  coming  of  age  make 
good  and  effectual  by  recognizing  or  confirming  it.  His  convey- 
ance of  the  same  land,  after  attaining  his  majority,  subject  to  the 
mortgage,  is  a  sufficient  confirmation  of  it.^  A  subsequent  execu- 
tion of  a  deed  to  a  third  person,  which  does  not  refer  to  the  mort- 
gage, does  not  necessarily  amount  to  a  repudiation  of  the  mort- 
gage.'^ And  so  a  will  made  by  one  after  coming  of  age,  whereby 
he  directed  the  payment  of  "all  his  just  debts,"  was  after  his 
death  held  to  be  a  sufficient  confirmation  of  a  morto-ase  and  bond 
executed  during  his  infancy  to  secure  the  payment  of  borrowed 
money.^ 

The  subsequent  ratification  in  all  cases  relates  back  to  the  origi- 
nal execution  of  the  mortgage  as  against  all  persons  except  pur- 
chasers for  a  new  and  valuable  consideration.^ 

It  has  been  held,  however,  that  a  mortgage  by  an  infant  which 
was  not  in  any  way  for  his  benefit,  as  for  instance,  one  made  as 
surety  for  another,  is  not  merely  voidable,  but  void,  and  therefore 
not  subject  to  ratification.     Thus  a  mortgage  given  by  an  infant 

1  riynnt).  Powers,  35  How.  (N.  y.)  Pr.  355.     Or  by   part  payment.      Keegan   v. 
279 ;  S.  C.  aff.  36  lb.  289.  Cox,  116  Mass.  289. 

2  Callis  V.  Day,  38  Wis.  643,  and  cases  *  Palmer   v.   Miller,  25  Barb.  (N,  Y.) 
cited;  and  see  Schouler's  Dom.  Rel.  518  399. 

«'  «'^7-  ^  Merchants'  Fire  Ins.  Co.  v.  Grant,  2 

8  Story  V.  Johnson,  2  Y.   &  C.  Exch.  Edw.  (N.  Y.)  Ch.  544. 

607;    Boston   Bank    v.    Chamberlin,    15  6  Palmer    v.  Miller,  25    Barb.  (N.  Y.) 

Mass.  220 ;  Lynde  v.  Budd,  2  Paige  (N.  399. 
Y.),  191  ;  Phillips  v.  Green,  5  Mon.  (Ky.) 
80 


WHO   MAY    GIVE   A   MORTGAGE.  [§  106. 

-i'eme  covert,  to  secure  the  debt  of  her  husband,  is  held  to  be  ab- 
solutely void,  and  incapable  of  confirmation.^ 

Coverture  of  a  female  infant  does  not  remove  the  disability  of 
minority.  Therefore  if  she  has  given  a  mortgage  of  her  land  dur- 
ing her  minority,  her  husband  joining  in  it,  she  may  repudiate  it 
on  coming  of  age,  and  she  is  not  bound  to  return  the  consideration 
received  unless  she  still  has  the  jaroceeds  of  it  in  her  hands  spe- 
cifically."'^ 

3.  Married  Women. 

106.  At  common  law  a  married  woman  could  not  make  a 
mortgage  eveli  to  secure  the  payment  of  the  purchase  money  of 
real  estate  conveyed  to  her.  Both  the  mortgage  and  the  note  were 
void.^  She  had  no  power  to  make  contracts.  In  equity,  however, 
she  has  long  occupied  quite  a  different  position  in  regard  to  her 
own  property,  and  her  power  to  contract  in  relation  to  it.  In 
England  the  courts  of  equity  have  extended  her  rights  over  her 
separate  estate  and  her  liability  for  her  contracts,  until  it  is  now 
the  settled  doctrine  that  her  property  is  holden  in  equit}"  for  her 
engagements,  whether  in  writing  or  not.  Yet  at  law  they  cannot 
be  enforced.  Her  obligations  are  not  strictly  debts.  She  is  not 
personally  holden  for  them ;  but  her  separate  estate  is  subjected 
to  their  payment.  The  proceeding  to  enforce  them,  therefore,  is  in 
the  nature  of  a  proceeding  in  rem. 

In  this  country  the  common  law  rights  and  liabilities  of  married 
women  have  been  changed  almost  wholly  by  statute.  Liberal 
provision  is  generally  made  in  all  the  states  for  the  holding  of 
separate  property  by  married  women,  and  for  their  contracting  in 
relation  to  it.  But  they  have  not  gone  to  the  extent  of  declaring 
that  her  separate  estate  shall  be  liable  generally  for  her  pecuniary 
engagements.  Under  these  statutes,  as  a  rule,  she  is  merely  au- 
thorized to  contract  witli  reference  to  her  separate  property  ;  and 
she  is  not  allowed  to  do  this  even,  except  with  the  concurrence 
of  her  husband,or  with  the  approval  of  some  court.^  Therefore, 
a  deed  by  her  in  the  name  she  bore  before  marriage,  and  not 

1  Cronise    v.    Clark,  4  Md.    Ch.   403;  begin  u.  Langley,  39  Me.  200;  Hebum  v. 

Chandler  v.  McKiiiney,  6  Mich.  217.  Warner,  112  Mass.  271. 

^  See  Walsh  v.  Young,  110  ilass.  396,        ■*  A.s,    for  instance,    in    Massachusetts. 

and  cases  cited;  Dill  v.  Bowen,  54  Ind.  See  Gen.  Stat.  c.  108,  §  3;  Weed  Sewing 

204.  Machine  Co.  v.  Emer.-ou,  115  Mass.  554  ; 

8  Savage  v.  Ilolyoke,  59  Me.  345  ;  New-  Concord  Dank  v.  Bellis,  10  Cush.  (Mass.) 

276. 
VOL.  I.  6  g][ 


§  107.J  THE   PARTIES   TO   A   MORTGAGE. 

disclosing  this,  although  made  with  the  fraudulent  purpose  of  im- 
posing upon  the  grantee,  does  not  estop  her  from  setting  up  title 
in  the  land  as  against  the  grantee.^  Her  sole  deed  is  absolutely 
void.2 

107.  The  equity  doctrine  in  England  of  her  liability  for  her 
contracts.  —  In  England,  and  in  some  of  our  States,  it  has  been 
held  that  the  separate  property  of  a  married  woman  is  answerable 
in  equity  for  her  debts  and  engagements  to  the  full  extent  to 
which  it  is  subject  to  her  disposal.  At  a  very  early  period  in 
England  it  was  held  that  a  married  woman,  although  incompetent 
at  law  to  make  a  valid  contract,  would  be  regarded  in  equity  as  a 
feme  sole  in  respect  to  her  separate  estate.^  "  And  the  rule  seems 
to  have  been  universally  recognized,  where  a  married  woman  made 
an  express  contract  respecting  such  an  estate,  of  which  she  was 
entitled  to  the  beneficial  use,  that  slie  and  the  party  with  whom 
she  contracted  might  have  the  aid  of  a  court  of  equity  to  make 
the  contract  effectual."  ^ 

Lord  Thurlow  ^  carried  the  doctrine  farther,  and  declared  he  had 
"  no  doubt  about  this  principle,  that  if  a  court  of  equity  says  a 
feme  covert  may  have  a  separate  estate,  the  court  v/ill  bind  her  to 
the  whole  extent,  as  to  making  that  estate  liable  to  her  own  en- 
gagements; as,  for  instance,  for  the  payment  of  debts."  This 
subject  and  the  English  authorities  upon  it  were  fully  examined 
by  Lord  Brougham,^  who  arrives  at  the  same  result.  "  In  all 
these  cases,"  he  says,  "I  take  the  foundation  of  the  doctrine  to  be 
this  :  The  wife  has  a  separate  estate,  subject  to  her  own  control 
and  exempt  from  all  other  interference  or  authority.  If  she  can- 
not affect  it,  no  one  can  ;  and  the  very  object  of  the  settlement 
which  vests  it  in  her  exclusively  is  to  enable  her  to  deal  with  it 
as  if  she  were  discovert.  The  power  to  affect  it  being  unquestion- 
able, the  only  doubt  that  can  arise  is,  whether  or  not  she  has 
validly  incumbered  it.     At  first  the  court  seems  to  have  supposed 

1  Lowell  V.   Daniels,  2   Gray    (Mass.),  ^  Hulme  v.   Tenant,  1   Bro.  C.  C.  16 ; 
161.  and  see   same  case  in  White  &  Tiidor's 

2  Warner  v.  Crouch,   14  Allen  (Mass.),  Lead.  Cas.  in  Eq.  (Am.  ed.)  324,  and  the 
163.  authorities  there  collected. 

8  Grigby  v.  Cox,  1  Ves.  Sen.  517;  Pea-        «  Jq   Murray  v.  Bailee,  3  Myl.  &  K. 
cock  V.  Monk,  2  lb.  190.  209. 

*  Per  Hoar,  J.,  in  Willard  v.  Eastham^ 
15  Gray  (Mass.),  328. 

82 


WHO   MAY    GIVE   A  MORTGAGE.         .  [§  107. 

that  nothing  conkl  toucli  it  but  some  real  charge,  as  a  mort- 
gage, or  an  instrument  amounting  to  an  execution  of  a  power, 
where  that  view  was  supported  by  the  nature  of  the  settle- 
ment. But  afterwards  her  intention  was  more  regarded,  and  the 
court  only  required  to  be  satisfied  that  she  intended  to  deal  with 
her  separate  property.  When  she  appeared  to  have  done  so,  the 
court  held  her  to  have  charged  it,  and  made  the  trustees  answer 
the  demand  thus  created  against  it.  A  good  deal  of  the  nicety 
that  attends  the  doctrine  of  powers  thus  came  to  be  imparted  to 
this  consideration  of  the  subject.  If  the  wife  did  any  act  directly 
charging  the  separate  estate,  no  doubt  could  exist ;  just  as  an  in- 
strument expressing  to  be  in  execution  of  a  power  was  always 
of  course  considered  as  made  in  execution  of  it.  But  so,  if  by  any* 
reference  to  the  estate  it  could  be  gathered  that  sucli  was  her  in- 
tent, the  same  conclusion  followed.  Thus,  if  she  only  executed  a 
bond,  or  made  a  note,  or  accepted  a  bill,  because  those  acts  would 
have  been  nugatory  if  done  by  •nfe.me  covert,  without  any  refer- 
ence to  her  separate  estate,  it  was  held,  in  the  cases  I  have  above 
cited,  that  she  must  have  intended  to  have  designed  a  charge  on 
that  estate,  since  in  no  other  way  could  the  instrument  thus  made 
by  her  have  any  validity  or  operation  ;  in  the  same  manner  as  an 
instrument,  which  can  mean  nothing  if  it  means  not  to  execute  a 
power,  has  been  held  to  be  made  in  execution  of  that  power, 
though  no  direct  reference  is  made  to  the  power.  Such  is  the 
principle.  But  doubts  have  been  in  one  or  two  instances  ex- 
pressed as  to  the  effect  of  any  dealing  whereby  a  general  engage- 
ment only  is  raised,  that  is,  where  she  becomes  indebted  without 
executing  any  written  instrument  at  all.  I  own  I  can  perceive  no 
reason  for  drawing  any  such  distinction.  If,  in  respect  of  her 
separate  estate,  the  wife  is  in  equity  taken  as  a,  feme  sole,  and  can 
charge  it  by  instruments  absolutely  void  at  law,  can  there  be  any 
reason  for  holding  that  her  liability,  or  more  properly  her  power 
of  affecting  the  separate  estate,  shall  only  be  exercised  by  a 
written  instrument  ?  Are  we  entitled  to  invent  a  rule,  to  add  a 
new  chapter  to  the  statute  of  frauds,  and  to  require  writing  where 
that  act  requires  none?  Is  there  any  equity,  reaching  written 
dealings  with  the  property,  which  extends  not  also  to  dealing  in 
other  ways,  as  by  sale  and  delivery  of  goods  ?  Shall  necessary 
supplies  for  her  maintenance  not  touch  the  estate,  and  yet  money 
furnished  to  squander  away  at  play  be  a  charge  on  it,  if  fortified- 

83 


§§  108,  109.]  THE   PARTIES   TO   A   MORTGAGE. 

by  a  scrap  of  writing  ?     No  sucli  distinction  can  be  taken  upon 
any  conceivable  principle." 

108.  Equity  enforces  her  contract  on  her  general  property.  — 
Lord  Cottenham,^  agreeing  in  the  doctrine  established,  was  of 
opinion  that  in  the  reason  of  it  there  is  nothing  which  has  any 
resemblance  to  the  execution  of  a  power.  "  What  it  is,  it  is 
not  easy  to  define.  It  has  sometimes  been  treated  as  a  dispos- 
ing of  the  particular  estate  ;  but  the  contract  is  silent  as  to  the 
particular  estate,  for  a  promissory  note  is  merely  a  contract  to  pay, 
not  saying  out  of  what  it  is  to  be  paid,  or  by  what  means  it  is 
to  be  paid  ;  and  it  is  not  correct,  according  to  legal  principles, 
"to  say  that  a  contract  to  pay  is  to  be  construed  into  a  contract 
to  pay  out  of  a  particular  property,  so  as  to  constitute  a  lien  on 
that  property.  Equity  lays  hold  of  the  separate  property,  but 
not  by  virtue  of  anything  expressed  in  the  contract ;  and  it  is 
not  very  consistent  with  correct  principles  to  add  to  the  contract 
that  which  the  party  has  not  thought  fit  to  introduce  into  it. 
The  view  taken  of  the  matter  by  Lord  Thurlow,  in  Huhne  v. 
Tenant^  is  more  logical.  According  to  that  view,  the  separate 
property  of  a  married  woman  being  a  creature  of  equity,  it  fol- 
lows that  if  she  has  a  power  to  deal  with  it,  she  has  the  other 
power  incident  to  property  in  general,  namely,  the  power  of  con- 
tracting debts  to  be  paid  out  of  it  ;  and  inasmuch  as  her  creditors 
have  not  the  means  at  law  of  compelling  payment  of  those  debts, 
a  court  of  equity  takes  upon  itself  to  give  effect  to  them,  not  as 
personal  liabilities,  but  by  laying  hold  of  the  separate  property, 
as  the  only  means  by  which  they  can  be  satisfied." 

109,  The  American  courts  do  not  carry  the  doctrine  to  this 
extent.  —  As  a  general  rule  her  separate  estate  is  not  chargeable 
with  her  debts  or  obligations  not  relating  to  her  separate  estate, 
unless  she  specially  makes  them  a  charge  upon  it  by  some  instru- 
ment in  writing.  Her  contracts,  which  do  not  concern  her  separate 
estate  and  are  not  made  upon  its  credit,  remain  void  as  they  were 
at  common  law.  The  statutes  of  the  several  states  differ  consid- 
erably in  their  effect  upon  her  power  to  make  contracts,  and  to 
charge  herself  and  her  real  estate  with  them  ;  but,  as  a  general 
rule,  equity,  while  holding  it  not  to  be  answerable  for  any  implied 

1  Oweus  V.  Dickenson,  Cr.  &  Phil.  48. 

84 


WHO   MAY   GIVE   A   MORTGAGE.  [§  110. 

undertaking  of  hers,  will  enforce  upon  it  her  mortgage  or  other 
express  contract,  although  it  be  not  made  for  her  benefit  but  for 
the  sole  benefit  of  another.^ 

In  a  case  in  the  Supreme  Court  of  Massachusetts,-  Mr.  Justice 
Hoar,  after  a  careful  review  of  the  authorities,  said :  "  Our  con- 
clusion is,  that  when  by  the  contract  the  debt  is  made  expressly  a 
charge  upon  the  separate  estate,  or  is  expressly  contracted  upon 
its  credit,  or  when  the  consideration  goes  to  the  benefit  of  such 
estate,  or  to  enhance  its  value,  then  equity  will  decree  that  it  shall 
be  paid  from  such  estate  or  its  income,  to  the  extent  to  which  the 
power  of  disposal  by  the  married  woman  may  go.  But  when  she 
is  a  mere  surety,  or  makes  the  contract  for  the  accommodation  of 
another,  without  consideration  received  by  her,  the  contract  being 
void  at  law,  equity  will  not  enforce  it  against  her  estate,  unless  an 
express  instrument  makes  the  debt  a  charge  upon  it." 

110.  A  married  woman  can  bind  herself  personally  only  by 
such  obligations  as  have  reference  to  her  separate  property.  — 
She  is  not  bound,  therefore,  by  a  note  given  by  her  alone  or  jointly 
with  her  husband  for  a  debt  of  the  husband.^  The  fact  that  the  note 
is  secured  by  a  mortgage  on  her  real  estate  does  not  make  the  note 

1  Heburn  v.  Warner,   112  Mass.  271  ;  where  the  English  and    American   cases 

Willard    v.   Eastham,   15    Gray    (Mass.),  are  reviewed. 

328;  Rogers  v.   Ward,   8  Allen   (Mass.),  2  Willard  f.  Eastham,  15  Gray  (Mass.), 

387  ;  Young  v.  Graff,  28  111.  20  ;  Y''ale  v.  32S  at  335.     In  this  case  a  note  had  been 

Dederer,  18  N.   Y.  265;  S.  C.  22  N.  Y.  given  by  a  married  woman  to  her  brother 

451  ;    Owen    v.  Cawley,  36  N.    Y.   600  ;  to  establish  him  in  business  ;  but  no  mort- 

Knowles  v.  McCamly,  10  Paige   (N.  Y.),  gage  or  other  charge  upon   her  separate 

342;    Gardner    v.   Gardner,    7    lb.    112;  estate  was  given.     Upon  a  bill  in  equity  to 

Jaques  v.  Methodist  Epis.  Ch.  17  Jolins.  charge  it  upon  her  estate,  it  was  held  that 

(N.  Y.)    548;  Curtis  v.   Engel,   2  Sandf.  she  was  not  liable,  and  the   bill  was  dis- 

(N.  Y.)287;  Cruger  v.   Cruger,  5  Barb,  missed.     But  in  the  later  case  of  Heburn 

(N.  Y.)  227;  Ballin  v.  Dillaye,  37   N.  Y.  v.  Warner,  112  Mass.   271,  where  a  mar- 

35;  Whiter.  McNett,  33  N.  Y.  371  ;  White  ried  woman,  to  enable  her  son  to  borrow 

V.  Story,  43  Barb.  (N.  Y.)  124;  Ledlie  v.  money,  gave  her  note,   secured  by  mort- 

Vrooman,  41  lb.  109.  gage  of  her  separate  estate,  it  was   held 

The  earlier  cases  in  New  York  approxi-  that,  while  she  was  not  liable  upon  the 

mate  to  the  English  rule,  but  the  case  of  note,  and  the  mortgage  was  void  at  law, 

Yale  V.  Dederer  took   the  ground  stated  yet  in  equity  the  mortgage  should  be  en- 

in  the  text,  and  hasabeen  followed  since,  forced. 

See  §  111,  notes  3  and  4.  3  Yale  v.  Dederer,  18  N.  Y.  265  ;  22  N. 

Special  attention  is  called  to  the  case  of  Y.  450 ;  White  v.  McNett,  33  N.  Y.  371  ; 

Yale  V.  Dederer  for  a  full  and  careful  exam-  Ledlie  v.  Yroonian,  41  Barb.  (N.  Y.)  109  ; 

ination  of  the  subject;  also  to  Corn  Ex-  Burns  v.   Lynde,   6    Allen    (Mass.),  305, 

change  Ins.  Co.  t'.  Babcock,  42  N.  Y.  613,  313;  Athol  Machine  Co.  v.  Fuller,    107 

85 


I  110.]  THE   PARTIES   TO   A   MORTGAGE. 

such  an  obligation  respecting  her  separate  estate  as  to  render  her 
liable  upon  it,^  although  the  mortgage  itself  be  in  equity  a  valid 
and  binding  lien  upon  her  separate  property .^ 

Where  a  married  woman  is  empowered  by  statute  to  bargain, 
sell,  and  convey  her  real  estate  or  personal  property,  and  enter  into 
contracts  in  reference  to  it,  she  may  deal  with  the  property  itself, 
by  sale  or  otherwise,  and  all  obligations  assumed  in  connection 
therewith,  as  for  buildings  upon  her  own  land  ;  and  she  may  bind 
herself  to  pay  money  for  property  purchased,  as  the  property  will 
become  hers  by  the  purchase,  and  the  obligation  to  pay  is  held  to 
be  in  reference  to  her  separate  property. ^  But  this  is  the  limit  of 
her  power.  She  cannot  contract  as  surety  for  her  husband  or  for 
any  one  else.  The  character  of  a  note  or  other  contract  made  by 
her  is  not  affected  as  a  contract  applying  to  her  separate  property 
by  reason  that  it  is  secured  by  a  mortgage  on  her  land.  The  mort- 
gage is  collateral  to  the  note  ;  the  one  is  the  principal,  the  other 
the  incident ;  when  the  note  is  void  the  mortgage  is  void  also,  and 
cannot  be  foreclosed  at  law.^ 

"  In  an  action  brought  by  a  mortgagee  against  his  mortgagor,  on 
a  mortgage  given  to  secure  the  payment  of  a  note,  the  defendant 
may  show  the  same  matters  of  defence  which  he  might  show  in 
defence  of  an  action  on  the  note ;  "  ^  excepting  only  that  he  can- 
not plead  the  statute  of  limitations.^ 

But  a  married  woman  may,  with  the  proper  assent  of  her  hus- 
band, convey  her  separate  real  estate,  and  if  there  be  a  valid  con- 
sideration for  the  conveyance,  it  is  as  effectual  as  it  would  be  if 
she  were  not  married.  She  may  therefore  convey  her  real  estate 
in  mortgage  to  secure  a  valid  debt,  as  for  instance,  a  valid  note  of 
her  husband.  Her  mortgage  is  then  binding,  because  it  is  a  con- 
tract entered  into  by  her  in  relation  to  her  separate  property,  and 
to  secure  a  valid  and  existing  debt. 

It  does  not  matter  that  she  has  also  signed  her  husband's  note 
as  surety.  To  a  suggestion  in  such  a  case  that  the  mortgage  was 
void,  because  it  was   made  to  secure  a  note  signed  by  a  married 

Mass.  437  ;  Willard  v.  Eastham,  15  Gray  *  Brigham  r.  Potter,  14  Gray  (Mass.), 

(Mass.),    328;    Heburn   v.  Warner,    112  522;    Denny  v.   Dana,  2    Gush.    (Mass.) 

Mass.  271.  160. 

1  Williams  ?,'.  Hayward,  117  Mass.  532.  ^  Mr.    Justice    Metcalf,    in    Vinton    v. 

2  Thadier  v.  Churcliill,  118  Mass.  108.  King,  4  Allen  (Mass.),  562. 

8  Heburn  ?;.  Warner,  112  Mass.  271,  and         ^  Thayer    i;.  Mann,  19    Pick.    (Mass.) 
cases  cited.  '  535. 

86 


WHO   MAY    GIVE   A   MORTGAGE.  [§  111. 

woman  as  surety,  Chief  Justice  Bigelow  said  :  ^  "  This  might  be  a 
very  sound  argument  if  the  note  was  signed  by  the  married  woman 
alone.  In  such  case,  the  note  being  void,  the  demandant  would 
not  be  entitled  to  judgment  for  possession.  But  the  note  is  not 
void.  It  is  a  valid  contract  binding  on  the  other  promisors.  It  is 
therefore  the  ordinary  case  of  the  conveyance  of  real  estate  by  a 
valid  deed  to  secure  the  payment  of  debt  due  to  the  grantee." 
But  when  her  mortgage  is  made  to  secure  her  own  note  given  for 
the  accommodation  of  her  husband  or  any  one  else,  the  note  being 
void,  the  security  incident  to  it  is  void  also.  She  can  take  the  de- 
fence of  invalidity  in  the  same  way  that  any  mortgagor  may  defend 
on  the  ground  of  want  of  consideration,  or  of  duress.  Her  defence 
at  law  to  the  note  extends  to  the  mortgage. 

111.  Liability  for  deficiency  upon  foreclosure. —  The  foregoing 
examination  of  the  question,  how  far  a  married  woman  can  bind 
herself  individually  by  her  contracts,  is  applicable  to  the  question 
of  her  liability  for  a  deficiency  arising  upon  the  foreclosure  of  a 
mortgage  upon  her  estate.  It  has  been  noticed  that  while  in 
equity  the  lien  upon  her  estate  may  be  valid,  her  note  or  other 
personal  obligation  secured  may  be  wholly  void.^  Of  course  in 
such  case,  when  the  remedy  has  been  exhausted  against  the  mort- 
gaged estate,  there  is  no  further  remedy  against  her.-^  If,  for  in- 
stance, she  borrow  money  upon  a  mortgage  of  her  real  estate  for 
the  accommodation  of  her  husband,  and  it  is  paid  to  him,  she  is 
under  no  liability  for  any  deficiency  after  the  application  of  the 
property  to  the  repayment  of  the  loan.'^ 

1  Bartlett  v.  Bartlett,  4  Allen  (Mass.),  connection  with    it  was  not.      Since  the 

440.  above  statute  she  can  bind  herself  for  any 

-  Heburn  v.  Warner,  112  Mass.  271.  matter  pertainingto  her  separate  estate. 

3  Kidd   V.  Conway,  65  Barb.   (N.  Y.)         *  White    v.    McNett,    33   N.   Y.   371  ; 

158.  Payne  r.  Burnham,  62  N.  Y.  69,  reversing 

Prior  to  the  statute  of  1860,  c.  90,  it  2  Hun,  143;  jNIanhattan  Brass  &  Manuf. 

was  hi^ld  in  New  York   that   a   married  Co.  v.  Thompson,  58  N.  Y.  80. 
woman  could  not  bind  herself  personally         In  New  York,  by  Laws   1862,  c.   172, 

for  the  price  of  real  estate  bouj,'ht  by  her  §  7,  it  is  provided  that  a  married  woman 

and  conveyed  to  her ;  Knapp  v.  Smith,  27  may  be  sued  in  any  court,  and  a  judgment 

N.  Y.  279  ;  nor  for  the  rent  reserved  upon  recorded   against    her    may   be    enforced 

a  lease  to  her,  though  the  lease  itself  was  against  her  sole  and  separate  estate  in  the 

otherwise  valid,  and  the  lessor  might  re-  same  manner  as  if   she  were  sole.     The 

enter.      So   a  mortgage  for  the  j)rice  of  effect   of  this  statute  is  to   give   a  legal 

real  estate  conveyed  to  her  was  valid  in  remedy  against  her  property  generally  for 

q  uity,  though  the  note  or  bond  given  in  her  debts,  and  not  merely  a  remedy  ia 

87 


§§  112,  113.]      THE  PARTIES  TO  A  MORTGAGE. 

A  married  woman  ma}^  bind  herself  personally  for  a  loan  made 
to  her  npon  her  mortgage  of  her  real  estate  if  the  loan  is  for  the 
benefit  of  her  separate  estate.^  That  the  loan  is  for  the  benefit  of 
her  separate  estate  may  appear  by  the  mortgage,  or  may  be  shown 
by  evidence.^ 

112.  The  English  doctrine  adopted  in  some  states.  —  In 
some  states,  however,  the  English  doctrine  in  equity,  that  a  wife's 
separate  property  is  liable  generally  for  her  debts,  is  followed.^ 
It  is  regarded  as  right  that  her  property  should  pay  her  pecuniary 
engagements,  whether  they  are  made  for  her  own  benefit  or  not, 
and  whether  they  are  charged  upon  particular  property  or  not. 
Neither  does  it  matter  whether  her  engagements  be  express  or  im- 
plied ;  whether  they  be  in  writing  or  by  parol  merely.  Having 
the  power  to  contract  debts,  and  to  bind  her  separate  property 
for  their  payment,  she  is  regarded  as  intending  that  her  obliga- 
tions shall  be  enforced  according  to  their  purport. 

113.  To  secure  debt  of  husband. —  A  married  woman  may 
make  a  valid  mortgage  of  her  separate  property  to  secure  the  pay- 
ment of  the  debt  of  her  husband  or  of  any  other  person,  in  the 
same  manner  as  if  she  were  unmarried.'*  An}'^  consideration  which 
would  be  sufficient  to  support  the  obligation  if  made  by  any  one 
else,  as  for  instance  the  granting  of  the  original  loan,  or  a  subse- 
quent extension  of  the  time  of  payment  of  the  debt,  is  sufficient  to 

equity  atrainst  her  estate  expressly  charffed  21   Ind.  331;  Webb  r.  Hoselton,  4  Neb. 

with  the  payment  of  a  debt  for  which  she  308  ;  Deering  v.  Boyle,  8  Kans.  525,  where 

was  not  personally  liable.    Corn  Exchange  the   cases   are   fully   examined  ;    Todd  v. 

Ins.  Co.  V.  Babcock,  42  N.  Y.  613  ;  First  Lee,  15  Wis.  365;  Heath  v.  Van  Cott,  9 

Nat.  Bank  of   Canandaigua  v.   Garling-  Wis.  516;  Smith  r.  Wilson,  2  Met.  (Ky.) 

house,  53  Barb.  (N.  Y.)  615;  Andrews  v.  235;    Johnston    v.    Ferguson,    lb.    503; 

Monilaws,  8  Hun  (N.  Y.),  65.  Sharp  v.    Proctor,   5   Bush    (Ky.),   396  ; 

1  Payne  v.  Burnham,  supra.  Hobson  v.  Hobson,  8 lb.  665. 

2  Corn  Exchange  Ins.  Co.  v.  Babcock,  *  See  cases  cited  in  §§  109, 110;  also  De- 
42  N.  Y.  613.  marest  v.  Wynkoop,  3  Johns.  (N.  Y.)  Ch. 

8  1  Bishop   on   Mar.    Women,    §    873;  144;  Fireman's,  &c.   v.   Bay,  4  Barb.  (N. 

Schouler's  Dom.  Relations,  230;  Todd  v.  Y.)  407  ;  Robbins  v.  Abrahams,  1   Halst. 

Lee,  15  Wis.  365  ;  Johnson  v.  Cummins,  (N.  J.)  Ch.  465;  Iowa  Code,  §  2506 ;  Low 

16  N.  J.  Eq.  97  ;  Wheaton  v.  Phillips,  12  v.  Anderson,  41  Iowa,  476;  Smith  v.  Os- 

N,  J.  Eq.  (1  Beas.)  221  ;  Pentz  v.  Simon-  born,  33  Mich.  410;  Short  v.  Battle,  52 

son,  13  N.  J.  P:q.  232  ;  Gla.ss  v.  Warwick,  Ala.  456  ;  Comegys  v.  Clarke,  44  Md.  108 ; 

40  Pcnn.   St.  140;  Cummings  v.  Sharpe,  Plummer  t?.  Jarman,  44  Md.  632. 


WHO   MAY    GIVE    A    MORTGAGE.  [§  114. 

support  her  undertaking.^  Whatever  conflict  there  may  be  in  the 
authorities  as  to  the  ability  ot"  a  wife  to  cliarge  herself  personally 
for  any  debts  not  contracted  for  her  own  benefit,  there  is  a  general 
unanimity  in  holding  that  a  mortgage  ujion  her  property  may  be 
enforced  against  that  whether  made  for  her  benefit  or  not. 

The  mortgage  of  a  married  woman  upon  her  property,  given 
to  secure  a  debt  of  her  husband,  but  taken  by  the  mortgagee  in 
good  faith  and  without  fraud  on  his  part,  will  seldom,  if  ever,  be 
set  aside,  even  on  proof  that  her  husband  procured  her  execution 
of  it  by  fraudulent  representations.^  A  wife  having  executed  a 
paper  at  the  request  of  her  husband,  without  reading  it  or  inquir- 
ing as  to  the  contents  of  it,  although  it  was  a  mortgage  of  her 
property,  the  mortgagee  having  no  knowledge  of  this  fact,  was 
not  allowed  to  restrain  the  execution  of  it,  on  the  ground  that  it 
was  pi'ocured  by  fraud  or  deceit.^  But  the  court  refused  to  en- 
force a  mortgage,  the  execution  of  which  by  the  wife  was  pro- 
cured by  harshness  and  threats  on  the  part  of  the  husband  so 
excessive  as  to  subjugate  and  control  the  freedom  of  her  will.'^ 

114.  Surety  for  husband.  —  A  wife  who  has  mortgaged  her 
separate  property  for  her  husband's  debt  is  in  the  position  of  a 
surety,^  and  her  liability  and  the  mortgage  lien  is  discharged  by 
an  extension  of  the  time  of  payment  without  her  consent.^  Her 
rights  in  this  respect  are  the  same  as  if  she  were  sole. 

Moreover  she  is  entitled  to  have  her  estate  exonerated  out  of 
the  estate  of  her  husband  if  this  be  practicable."  When  he  has 
mortgaged  or  pledged  his  own  property  for  the  same  debt,  his 
property  should  in  the  first  instance  be  applied  to  satisfy  the  mort- 
gage.^    The  creditor  having  security  upon  the  husband's  property 

1  Low  V.   Anderson,   supra;    Short    v.     Scranajre,  19  Iowa,  4G1  ;  Watson  i-.  Thur- 
Battle,  supra.  ber,  11  Mich.  457 ;  Spear  v.  Ward,  20  Cal. 

2  Spurgin  r.  Traub,  65  111.  170.  659  ;  Ellis  i'.  Kenyon,  25  Ind.  134. 

8  Comegys  r.  Clarke,  44  Md.  108  ;  and  ^  Bank  of  Albion  v.  Burns,  46  N.  Y. 

see  Freeman  I!.  Wilson,  51  Miss.  329.  170;    Coleman    v.   Van     Rensselaer,    44 

*  Central  Bank  of  Frederick  v.   Cope-  How.   (N.  Y.)  Pr.   368  ;  Smith  v.  Town- 
land,  18  Md.  305.  send,  25  N.   Y.  479;  Spear  v.  Ward,  20 

5  Hawley  r.  Bradford,  9  Paige  (N.  Y.),  Cal.  659  ;  White  &  Tudor  Lead.  Cas.  in 

200;  Demarest  v.  Wynkoop,  3  Johns.  (N.  Eq.  (4th  ed.)  1922,  and  cases  cited. 

Y.)Ch.  129;  Vartier.  Underwood,  18  Barb.  ''  Wilcox  v.  Todd,  64  Mo.  388;  Hun- 

(N.  Y.)  561  ;  Young  v.   Graff,  28  III.  20;  tingdon  i'.  Huntingdon,  2  Bro.  P.  C.  1. 

Bartlett  r.  Bartlett,  4  Allen  (Mass.),  440;  *  Wilcox  v.  Todd,  supra;    Loomer   v. 

Eaton  V.  Nason,  47   Me.    132;    Green  v.  Wheelright,  3   Sandf.  (N.  Y.)  Ch.    135; 

89 


§  115.]  THE  PARTIES   TO   A   MORTGAGE. 

for  the  payment  of  the  same  debt,  by  releasing  this  discharges  the 
wife's  estate.^ 

The  husband  being  the  principal  debtor,  if  he  acquire  the  mort- 
gage, it  will  be  discharged.^  Although  the  right  of  redemption  be 
limited  to  him,  she  may  nevertheless  redeem,  unless  it  appear  from 
the  instrument  itself  or  from  extraneous  evidence  that  she  intended 
to  make  a  gift  of  the  property  to  her  husband,  and  that  the  con- 
veyance, therefore,  should  be  absolute.^ 

To  make  the  mortgagee  chargeable  with  the  equitable  rights  of 
the  wife,  as  surety  for  her  husband,  it  must  appear  that  he  had 
notice  of  this  relation.  Such  notice  cannot  be  inferred  merely 
from  the  f-act  that  the  money  was  paid  to  the  husband,  because  he 
may  have  acted  as  his  wife's  agent  in  the  transaction.  But  if  the 
mortgage  be  made  to  secure  a  preexisting  debt  of  the  husband's, 
the  creditor  is  affected  with  notice  of  the  wife's  equity  as  surety, 
and  in  his  dealings  with  the  husband  is  bound  by  this  knowledge.* 

In  Kentucky,  however,  it  is  held  that  a  married  woman,  who 
mortgages  her  real  estate  to  secure  debts  of  her  husband,  does  not 
thereby  become  a  surety  of  her  husband,  and  entitled  to  a  dis- 
charge when  seven  years  shall  have  elapsed  without  suit  after  the 
cause  of  action  has  accrued,  under  a  statute  to  that  effect.  The 
security  takes  the  obligation  out  of  the  statute,  which  is  interpreted 
to  refer  only  to  one  who  becomes  a  surety  of  another  in  an  ordi- 
nary bond  or  obligation.^ 

115.  A  husband  has  no  presumptive  authority  to  consent 
to  an  extension  of  a  mortgage  given  by  his  wife  to  secure  his 
debt.  The  holder  of  such  a  mortgao-e  is  charo-eable  with  notice  of 
her  ownership,  and  that  she  stands  in  the  relation  of  surety  to  the 
husband.  Tlie  lien  is  therefore  discharged  by  an  extension  of  the 
time  of  pa3anent  without  her  concurrence.*^ 

Sheidle   v.   Weislilec,    16   Penn.   St.  134;  3  D^ffy  j,.  ins.  Co.  8  W.  &  S.  (Pa.)  41-3, 

Johns  V.  Reardon,  11  Md.  465  ;  Weeks  v.  4.33  ;  Demavest  v.  Wyncoop,  3  Johns.  (N. 

Haas,  3   W.  &  S.  (Pa.)  520;  Knight  v.  Y.)  Ch.  129. 

Whitehead,  26  Miss.  245  ;  Wright  v.  Aus-  *  Loonier  v.  Wheelright,  3    Sandf.  (N. 

tin,  56Barb.  (N.  Y.)  388;  Gahn  i;.  Neimce-  Y.)     Ch.    135;    Gahn  v.   Neimcewiez,   3 

wicz,   3    Paige    (N.    Y.),    614;    S.    C.    11  Paige     (N.    Y.),    614;    11    Wend.    312; 

Wend.  312.  Knight  v.  Whitehead,  26  Miss.  245. 

1  Ayres  v.  Husted,  15  Conn.  504  ;  Johns  &  Hobson  v.  Hobson,  8  Bush  (Ky.),  665. 
V.  Reardon,  11  Md.  465.  6  b,^,,^   of  Albion   v.   Burns,    2  Lans. 

2  Fitch  V.  Cotheal,  2  Sandf.  (N.  Y.)  Ch.  (N.  Y.)  52  ;  Smith  v.  Townsend,  25  N.  Y. 
29.  479. 

90 


WHO   MAY   GIVE   A   MORTGAGE.  [§§  116,  117. 

116.  May  make  a  valid  contract  to  assume  a  mortgage.  — 
A  married  woman,  in  taking  a  conveyance  of  lands  incumbered 
by  a  mortgage,  may  make  a  valid  contract  to  assume  the  payment 
of  it,  and  render  herself  liable  to  the  mortgagee  for  a  deficiency.^ 
Such  a  contract  is  not  an  undertaking  to  pay  the  debt  of  another, 
but  to  pay  her  own  debt  for  the  benefit  of  her  own  estate.  Hav- 
ing the  capacity  to  make  contracts  for  the  acquisition  of  land,  she 
must  have  the  capacity  of  binding  herself  for  the  payment  of  the 
price  of  it.  It  is  as  much  within  her  capacity  to  make  an  agree- 
ment to  assume  the  payment  of  an  existing  mortgage,  as  it  is  to 
give  a  new  mortgage  and  note  for  a  part  of  the  purchase  money. 

117.  In  Alabama  a  married  woman  cannot  bind  either  herself 
or  her  statutory  real  estate,  by  a  mortgage  made  to  secure  debts 
contracted  by  her  husband.^  Even  a  mortgage  given  by  her  in 
part  paj'ment  of  the  purchase  price  of  the  land  at  the  time  of  the 
conveyance  to  her  is  not  binding  upon  her  ;  but  she  may  go  into 
chancery  and  have  the  sale  to  her  set  aside,  and  the  money  she 
has  paid  on  the  purchase  paid  back  to  her.^  A  sale  made  under 
a  power  in  such  mortgage  is  ineffectual,  and  the  court  may  direct 
her  debt  to  be  held  as  a  charge  upon  the  land,  and  decree  her 


1  Hiiyler  v.  Atwood,  26  N.  J.  Eq.  .504; 
Perkins  v.  Elliott,  23  lb.  53.3  ;  Carpenter 
V.  Mitchell,  54  111.  126  ;  Ballin  v.  Dillaye, 
35  How.  (N.  Y.)  Pr.  216;  S.  C.  37  N.  Y. 
35;  FJynn  v.  Powers,  35  How.  (N.  Y.) 
Pr.  279  ;  S.  C.  36  lb.  289 ;  Vrooman  v. 
Turner,  8  Hun  (N.  Y.),  78. 

An  earlier  case  in  the  Supreme  Court 
of  New  Y''ork  held  that  a  married  woman 
was  not  liable  in  such  case,  because  a  pur- 
chase which  turned  out  so  poorly  —  the 
property  not  being  worth  the  amount  of 
the  mort^^^ge  dovenant  —  could  not  be  for 
the  benejit  of  her  separate  estate.  Brown 
V.  Hermann,  14  Abb.  (N.  Y.)  Pr.  394. 

2  Davidson  v.  Lanier,  51  Ala.  318; 
Wilkinson  v.  Cheatham,  45  Ala.  337 ; 
Cowles  y.  Marks,  47  Ala.  612;  Northing- 
ton  V.  Faber,  52  Ala.  45 ;  Fry  v.  Hamner, 
50  Ala.  52 ;  Riley  i-.  Pierce,  50  Ala.  93. 

Code,  1867,  §§  2371,  2372,  2376.  All 
property  of  the  wife,  held  by  her  previous 
to  the  marriage,  or  which  she  may  become 


entitled  to  after  the  marriage,  in  any  man- 
ner, is  the  separate  estate  of  the  wife,  and 
is  not  subject  to  the  payment  of  the  debts 
of  the  husband.  Property  thus  belonging 
to  the  wife  vests  in  the  husband  as  her 
trustee,  who  has  the  right  to  manage  and 
control  the  same,  and  is  not  required  to 
account  with  the  wife,  her  heirs,  or  legal 
representatives,  for  the  rents,  income,  and 
profits  thereof;  but  such  rents,  income, 
and  profits  are  not  subject  to  the  payment 
of  the  debts  of  the  husband.  For  all  con- 
tracts for  articles  of  comfort  and  support 
of  the  household,  suitable  to  the  degree 
and  condition  iu  life  of  the  family,  and  for 
which  the  husband  would  be  responsible 
at  common  law,  the  separate  estate  of  the 
wife  is  liable. 

3  Cowles  V.  Marks,  supra.  "One  who 
deals  with  a  married  woman  in  this  state 
about  her  property  must  take  notice  of 
her  powers  and  her  disabilities."  Per  Pe- 
ters, J. 

91 


§  118.]  THE   PARTIES   TO   A   MORTGAGE. 

money  to  be  paid  back  to  her,  within  a  reasonable  time ;  or  in  the 
event  of  failure,  that  the  land  be  sold,  and  her  debt  paid  out  of 
the  proceeds  of  such  sale  ;  but  she  would  be  held  to  account  for 
the  rents  and  profits  received  during  her  occupation  of  the  land.^ 

A  distinction  is  taken  between  the  statutory  real  estate  of  a 
married  woman,  and  that  which  is  her  equitable  separate  estate  ; 
and  such  an  equitable  separate  estate  may  be  created  when  the 
gift,  or  devise,  or  conveyance  to  her,  clearly  and  certainly  shows 
an  intent  to  exclude  the  marital  rights  of  the  husband  under  the 
statute.  Such  separate  estate  not  affected  by  the  statute  she  can 
mortgage  for  her  own  debt  or  that  of  any  one  else.^ 

A  mortgage  of  a  married  woman's  statutory  separate  estate, 
executed  by  herself  and  husband  to  secui'e  the  payment  of  their 
joint  promissory  note,  is  not  binding  upon  her  estate,  not  being 
bound  for  the  debt.  The  consideration  of  the  note  may  be  shown 
by  parol  to  have  been  the  indebtedness  of  the  husband.^  But  if 
the  contract  of  purchase  was  made  by  the  husband  alone,  though 
the  conveyance  was  taken  in  the  name  of  his  wife,  and  the  vendor 
had  no  notice  of  the  wife's  claim  to  the  money,  his  equity  under 
the  mortgage  is  regarded  as  superior  to  hers.* 

118.  In  Mississippi  a  married  woman  can  make  contracts  bind- 
ing her  separate  property  only  for  certain  purposes.  In  general,  it 
may  be  said  that  she  has  no  power  to  borrow  money  by  mort- 
gaging her  real  estate ;  but  if  the  lender  can  show  that  the  money 
was  actually  applied  to  discharge  a  debt  for  which  her  separate 
estate  was  already  bound,  or  to  make  purchases  for  which  she 
might  charge  her  estate,  then  the  lender  may  recover  upon  the 
property  mortgaged.  She  cannot  bind  the  corpus  of  her  property 
to  pay  her  husband's  debt :  ^  it  being  provided  by  statute  that 
"  no  conveyance  or  incumbrance  for  the  separate  debts  of  the 
husband  shall  be  binding  on  the  wife,  beyond  the  amount  of  her 
income."  ^     Although  such  a  mortgage  may  be  operative  on  her 

1  Cowles  y.  Marks,  S!<pra;  Short  r.  Bat-  »  Stribling-  v.  Bank  of  Kentuck3%  48 
tie,  52  Ala.  456.     See  Ilaygood  v.  Mar-     Ala.  45. 

lowe,    51    Ala.   478,    as  to  effect  of  deed  *  Haygood  r.  Marlowe,  51  Ala.  478. 
and  simultaneous  mortgage  for  purchase  ^  Viser  v.  Scruggs,  49  Miss.  705 ;  Free- 
money,  man  v.  Wilson,  51  Miss.  329;  and  see  Di- 

2  Short  V.  Battle,  52  Ala.  456,  brell  v.  Carlisle,  51  Miss.  785. 


6  Code,  1871,  §  1778. 


92 


WHO   iMAY   GIVE   A   MORTGAGE.  [§§  119,  120. 

estate  to  that  extent,  it  ceases  to  be  operative  upon  it  in  any  way 
upon  her  death .^ 

4.   Tenants  in  Common  of  Partnership  Real  Estate. 

119.  Generally.  —  Land  conveyed  to  members  of  a  copartner- 
ship as  tenants  in  common,  but  purchased  with  copartnership  funds 
and  used  for  copartnership  purposes,  is  treated  in  equity  as  copart- 
nership jjroperty.  The  creditors  of  the  copartnership  are  in  such 
case  entitled  to  priority  of  payment  out  of  it  in  preference  to  the 
creditors  of  individual  members  of  the  firm.^  But  if  one  member 
of  tlie  copartnership  mortgages  liis  apparent  interest  as  tenant  in 
common  of  such  land  for  a  consideration  paid  him  at  the  time,  as 
for  instance  for  a  loan  of  money,  the  mortgagee  having  no  notice 
of  the  character  of  the  property  in  equity  as  copartnership  prop- 
erty, he  is  entitled  to  hold  it  under  his  mortgage.  He  may  rely 
upon  the  legal  effect  of  the  conveyance  to  his  mortgagor,  and  upon 
his  apparent  title  upon  record. 

But  a  mortgagee  as  to  tlie  interest  he  holds  is  a  purchaser,  and 
if  he  take  a  mortgage  upon  partnership  real  estate  without  notice 
that  it  is  such,  he  is  subject  to  no  equity  in  favor  of  the  partner- 
ship or  of  its  creditors.'^ 

120.  Notice  of  partnership  equities.  —  A  mortgage  made  by 
a  partner  of  his  interest  in  partnership  real  estate,  to  one  who 
knows  it  to  be  such,  is  not  a  mortgage  of  the  partner's  undivided 
interest  in  such  real  estate,  but  of  his  interest  in  the  portion  mort- 
gaged after  the  payment  of  the  firm  debts  upon  a  settlement  of 
the  partnership  accounts.  The  mortgage  is  not  available  until 
the  partnership  debts  have  been  paid  and  the  partnership  ac- 
counts have  been  discharged,  if  the  other  partner  chooses  to  assert 
his  equity,  or  if  subsequent  partnership  mortgagees  assert  their 
priority  ;^  or  if  creditors  of  the  partnership  attach  the  property  or 
levy  an  execution  upon  it  as  belonging  to  the  partnership.^  There 
would  in  such  case  be  no  distinction  between  debts  incurred  prior 
to   the  mortgage  and  those  incurred  subsequently.*^     Upon    the 

1  Reed  V.  Coleman,  51  Miss.  835.  »  Hewitt  v.  Rankin,  41  Iowa,  35. 

2  Pollock's  Dig.  of  Lawof  Piutnership;  *  Beecher  v.  Stevens,  43  Conn.  587. 
Story  on  rartnL'rsliip,§§  92,  93;  Hewitt  y.  ^  j^ovejoy   v.  Bowers,    11    N.    H.  404; 
Rankin,  41  Iowa,  35  ;  Biichan  v.  Sumner,  French  v.  Lovejoy,  12  N.  H.  458. 

2  Barb.  (N.^Y.)  Ch.  165;  Meily  v.  Wood,         ^  Lovejoy  v.  Bowers,  sujjra. 
71  Pa.  St.  488. 

93 


§  121.]  THE   PARTIES   TO  A   MORTGAGE. 

bankruptcy  of  the  firm,  the  assignee,  in  behalf  of  the  creditors, 
would  be  entitled  to  the  property  in  preference. 

If  one  partner,  upon  retiring  from  the  partnership,  conveys  his 
interest  in  the  partnership  real  estate  to  another  person,  who  then 
comes  in  and  forms  a  new  firm,  and  this  new  partner  executes  a 
mortgage  of  such  real  estate  to  secure  the  purchase  money,  in  the 
absence  of  any  evidence  that  the  mortgage  was  intended  to  be  a 
mortgage  of  this  partner's  interest  in  the  new  firm,  it  is  proper  to 
regard  it  as  a  mortgage  of  the  same  partnership  interest  in  the  old 
firm  which  was  conveyed  to  the  new  partner,  and  not  of  his  in- 
terest in  the  new  firm.  Such  a  mortgage  is  subject  to  the  pay- 
ment of  the  debts  of  the  old  firm,  but  not  to  the  payment  of  the 
debts  of  the  new  firm.^ 

But  he  must  be  in  the  position  of  a  lond  fide  purchaser  for 
value  ;  he  must  have  parted  with  money  or  goods,  or  something 
valuable,  in  reliance  upon  the  security.  If  he  has  simply  taken 
the  mortgage  to  secure  an  existing  debt,  or  has  knowledge  of  the 
facts  which  make  the  property  in  equity  assets  of  the  firm,  then 
his  mortgage  will  be  postponed  to  the  equities  of  those  who  have 
a  right  to  have  the  property  applied  as  assets  of  the  copartner- 
ship.^ 

A  mortgage  by  one  partner  of  his  interest  in  a  mill  and  ma- 
chinery in  the  continued  use  and  occupation  of  the  partnership,  to 
secure  such  partner's  individual  debt,  passes  only  what  interest 
such  pai'tner  may  have,  after  paying  the  debts  of  the  copartner- 
ship.^ The  continued  use  of  such  property  by  the  partnership  is 
notice  of  the  equitable  rights  of  the  partnership  in  the  property. 

121.  Mortgage  of  partnership  property  by  one  partner  for 
partnership  debt.  —  Where  a  copartnership  carried  on  business 
in  a  store  built  by  the  firm  upon  land,  the  legal  title  of  which  was 
in  A.,  and  one  of  his  copartners,  to  secure  a  partnership  debt,  exe- 
cuted a  mortgage  of  the  land  with  the  consent  of  his  copartners, 
and  in  the  firm  name  of  A.  &  Co.,  and  acknowledged  the  execu- 
tion of  it  "  as  his  free  act  and  deed  in  behalf  of  said  firm,"  it  was 
held  valid  as  against  a  person  who,  with  actual  notice  of  this,  took 
a  subsequent  mortgage  of  the  same  property  executed  by  A.* 

1  Beecher  v.  Stevens,  43  Conn.  587.  ^  Mechanics'  Bank  v.  Godwin,  5  N.  J. 

2  Iliscock  V.  Flielps,  49  N.  Y.  97.  Eq.  (1  Halst.)  334. 

*  Wilson  i;.  Hunter,  14  Wis.  683. 

94 


WHO   MAY    GIVE   A   MORTGAGE.  [§§  122,  123. 

An  exception  to  the  general  rule,  that  an  authority  to  bind 
another  by  an  instrument  under  seal  must  itself  be  created  by  a 
like  instrument,  seems  to  have  been  established  in  the  case  of 
partners  ;  they  may  give  each  other  authority  by  parol,  to  bind 
each  other  by  instruments  under  seal.^  Some  of  the  cases  cited 
do  not  refer  to  conveyances  of  real  estate.  But  if  authority  to 
execute  a  personal  contract  under  seal  may  be  implied  from  this 
relation,  the  same  authority  may  as  well  extend  to  conveyances 
of  real  property.  Lord  Kenyon  said,  that  if  the  relation  of  part- 
nership gave  this  authority  in  the  one  case,  it  "  would  extend  to 
the  case  of  mortgages."  ^ 

An  unauthorized  mortgage  of  partnership  property  made  by 
one  partner  using  the  name  of  his  copartner  may  be  ratified  by 
the  latter  by  parol,  or  by  any  act  showing  his  recognition  of  the 
mortgage.^  A  mortgage  of  such  real  estate  by  one  partner  to 
secure  a  copartnership  debt  is  valid ;  ^  but  it  is  not  valid  if  made 
in  opposition  to  the  will  of  another  partner  with  the  knowledge  of 
the  creditor.^ 

122.  On  the  other  hand,  if  a  partner  mortgage  his  separate 
property  to  secure  a  partnership  debt,  he  becomes  a  surety  for 
the  firm,  and  his  separate  creditors,  upon  his  bankruptcy  or  insol- 
vency, have  a  right  to  insist  that  the  partnership  property  be  first 
applied  to  the  payment  of  the  debt  so  secured.*^ 

123.  Upon  the  death  of  a  partner  holding  such  an  interest 
in  partnership  real  estate,  his  share  descends  to  his  heirs,  but 
equity  converts  the  legal  title  into  a  trust,  to  be  devoted  to  the 
payment  of  partnership  obligations,  before  it  can  be  taken  as  a 
part  of  his  separate  estate.^  As  against  the  partnership  creditors 
there  can  be  no  dower  in  such  land.  But  when  such  real  estate 
is  not  required  for  the  payment  of  the  partnership  debts,  or  the 
adjustment  of  balances  between  the  partners,  it  is  to  be  treated 

1  See  Wilson  i;.  Hunter,  supra;  Cady  ^  Bull  v.  Harris,  18  B.  Mon.  (Ky.)  195. 
V.  Sheperd,  11  Pick.  (Mass.)  400;  Swan  «  Averill  v.  Loucks,  6  Barb.  (N.  Y.) 
V.  Stedman,  4  Met.  (Mass.)  548;  Smith     470. 

V.Kerr,  3N.  Y.  144.  ^  Wilcox  v.  Wilcox,  13  Allen  (Mass.), 

2  Harrison  i'.  Jackson,  7  T.  K.  207.  252;  Burnside  v.  Merrick,  4  Met.  (Mass.) 
8  Holbrook  v.    Chamberlin,  116  Mass.     537;  Dyer  v.   Clark,  5  lb.  562;  Howard 

155.  V.  Priest,  lb.  582. 

*  Cooley  V.  Hobart,  8  Iowa,  358. 

95 


§  124.]  THE   PARTIES   TO   A   MORTGAGE. 

as  realty  in  the  settlement  of  the  estate,  and  is  subject  to  dower. 
It  is  then  treated  in  every  way  as  real  estate,  and  does  not  go  to 
the  personal  representatives  of  the  deceased.  It  is  to  be  regarded 
as  real  estate  and  subject  to  all  the  rules  applicable  to  real  estate. ^ 
The  conversion  of  such  real  estate  into  personalty,  for  the  pur- 
pose of  the  settlement  of  the  partnersliip  affairs,  is  a  device  of 
equity  ;  and  as  soon  as  the  reason  of  the  rule  ceases,  by  the  clos- 
ing of  the  partnership  affairs  without  calling  upon  the  real  estate, 
the  rule  itself  no  longer  applies. ^  This  equitable  interference  is 
not  extended  so  as  to  convert  all  real  estate  into  personalty  for 
the  purpose  of  a  division. 

A  mortgage  by  an  individual  partner  of  such  real  estate  is  re- 
lieved of  all  equities  in  favor  of  the  partnership,  so  soon  as  the 
business  of  the  partnership  is  closed,  without  requiring  the  appli- 
cation of  it  to  the  firm  debts.^ 

5.   Corporations. 

124.  A  corporation  has  the  power  to  mortgage  its  real  es- 
tate as  an  incident  to  the  power  to  acquire  and  hold  it,  and  to 
make  contracts  in  i-egard  to  it,  when  the  power  is  not  expressly 
given  or  denied.*  The  jus  disponendi  of  corporations  is  at  com- 
mon law  unlimited.  This  right  may  of  course  be  circumscribed 
by  statute,  or  by  the  acts  under  which  they  are  organized  ;  and 
it  is  the  case  generally  that  corporations,  to  which  are  given  large 
powers  and  valuable  privileges,  from  the  exercise  of  which  it  is 
expected  the  public  will  derive  advantage,  are  restrained  in  their 
power  of  alienation  either  by  general  law  or  by  their  charters. 
Railroad  companies  are  of  this  class ;  and  accordingly,  under  such 
restraining  laws,  it  is  held  that  a  railroad  corporation  cannot 
mortgage  its  franchise  without  legislative  authority;^  that  it  has 
no  power  to  issue  bonds  and  make  mortgages  to  secure  them 
except  in  the  mode  and  for  the  purposes  authorized  by  statute, 

1  Foster's  Appeal,  74  Pa.  St.  391 ;  Wil-  Shearer  v.  Shearer,  98  Mass.  107,  for  an 
cox  i;.  Wilcox,  supra  ;  Hewitt  v.  Rankin,     able  opinion  by  Mr.  Justice  Wells. 

41  Iowa,  3.5,  and  cases  cited.  ■*  Aurora  Ag.  &,  Hort.  Soc.  v.  Paddock, 

2  Judge  Story  says,  in  his  work  on  Part-  80  111.  263;  and  see  Angell  &  Ames  on 
nership,  §   93,  that  this  is  an  open  ques-     Corp.  153. 

tion.  But  the  authorities  now  seem  de-  "  Atkinson  v.  Marietta,  &c.  R.  Co.  15 
cisive  of  the  law  as  stated  in  the  text.  Ohio  St.  21  ;  Coe  v.  Columbus,  &c.  R.  Co. 

3  Hewitt  V.   Rankin,  supra.     See,  also,     10  Ohio  St.  372  ;  Commonwealth  z;.  Smith, 

10  Allen  (Mass.),  448 

96 


WHO   MAY   GIVE   A   MORTGAGE.  [§  125. 

either  in  express  terms  or  by  reasonable  implication. ^  Authority 
given  to  railroad  corporations  to  mortgage  their  "  corporate  prop- 
erty and  franchises,"  to  secure  the  payment  of  debts  contracted 
for  certain  purposes,^  confers  the  right  to  mortgage  all  the  rights 
and  interests  of  a  railroad  company,  with  all  its  rights  and  inter- 
ests acquired,  and  to  be  acquired,  as  an  entirety.^  Authority  to 
a  railroad  company  to  transfer  all  its  property,  rights,  privileges, 
and  franchises  to  another  railroad  company  renders  valid  a  mort- 
gage to  that  company  of  a  portion  of  the  road  and  franchise.* 

When  an  unauthorized  mortgage  has  been  made  by  a  railroad 
corporation  of  its  corporate  franchise,  a  judicial  sale  under  the 
mortgage  does  not  invest  the  purchaser  with  any  corporate  ca- 
pacity whatever.^  But  an  unauthorized  mortgage,  or  one  defec- 
tively executed,  or  securing  bonds  not  properly  drawn,  may  be 
subsequently  confirmed  by  the  legislature.^ 

The  right  of  a  railroad  company  to  construct  a  road,  being  given 
because  of  the  benefit  to  the  public  arising  from  the  use  of  the 
road,  a  power  conferred  upon  it  to  mortgage  its  property  is  con- 
strued to  confer  upon  the  mortgagee,  or  a  purchaser  under  the 
mortgage,  all  needful  authority  to  use  the  road  in  a  proper  and 
beneficial  manner,  but  no  authority  to  take  up  and  sell  the  ma- 
terial of  which  the  road  is  made.^ 

125.  Limitation  of  po"wer  to  mortgage  does  not  apply  to 
lands  not  necessary  for  the  business  of  the  road.  —  But  this 
limitation  of  the  power  of  a  railroad  corporation  to  mortgage  its 
real  estate  does  not  apply  to  lands  not  acquired  to  enable  it  to 
carry  on  the  business  which  it  was  chartered  to  do  for  the  benefit 
of  the  public,  and  not  needed  or  used  for  that  purpose.  The 
alienation  of  such  lands  in  nowise  impairs  or  affects  the  useful- 
ness of  the  company  as  a  railroad  corporation,  or  its  ability  to 

1  East  Boston,  &c.  R.  Co.  v.  Hubbard,  of  mortgages  by  consolidated  I'oads,  see 
10  Allen  (Mass.),  4.59,  note;  Richardson  Wright  t'.  Bundy,  11  Ind. -398;  Bath  v. 
V.  Sibley,  11  Allen  (Mass),  65.  Miller,  51  Me.  341. 

2  New  York  General  Railroad  Act  of  °  Atkinson  v.  Marietta,  &c.  R.  Co.  15 
1850,  §  28,  subd.  10.  Ohio  St.  21. 

3  Seymour  v.  Canandaigua  &  Niagara  ^  Chapin  v.  Vermont,  &c.  R.  Co.  8 
Falls  R.  Co.  25  Barb.  (N.  Y'.)  284.  Gray    (Mass.),    575;    Shaw    v.    Norfolk 

*  East  Boston,  &c.  R.  Co.  v.  Eastern  R.     County  R.  Co.  5  lb.  162. 
Co.  13  Allen  (Mass.),  422  ;  for  other  cases        '  Palmer  v.  Forbes,  23  111.  301. 
VOL.  I.  7  97 


§§  126,  127.]  THE   PARTIES   TO   A  MORTGAGE. 

exercise  any  of  its  corporate  franchises.  Mr  Justice  Foster,  of 
Massachusetts,^  in  a  case  involving  this  point,  said:  "  The  recent 
cases  in  which  raih-oad  mortgages  have  been  adjudged  invaUd  by 
this  court  do  not  countenance  any  doubt  of  the  power  of  a  rail- 
road company  to  sell  and  convey  whatever  property  it  may  hold, 
not  acquired  under  the  delegated  right  of  eminent  domain,  or  so 
connected  with  the  franchise  to  operate  and  maintain  a  railroad 
that  the  alienation  would  tend  to  disable  the  corporation  from 
performing  the  public  duties  imposed  upon  it,  in  consideration  of 
which  its  chartered  privileges  have  been  conferred." 

If  a  mortgage  by  a  railroad  company  include  lands  which  it 
can  mortgage  without  distinct  legislative  authority,  and  also  lands 
which  it  cannot  convey  without  such  authority,  the  mortgage  will 
be  upheld  as  to  the  former,  but  will  be  inoperative  and  void  as  to 
the  latter.2 

126.  A  religious  corporation  has  in  general,  under  our  laws, 
the  same  right  to  mortgage  and  create  liens  upon  its  real  estate 
that  any  corporation  has.  Having  the  power  to  hold  and  enjoy 
real  estate,  unless  there  be  an  express  prohibition,  it  has  the  power 
to  mortgage  it.^ 

127.  The  power  to  mortgage  resides  primarily  in  the  body 
corporate,  or  otherwise  in  the  stockholders.  They  may  authorize 
the  execution  of  it  by  any  agents  they  may  by  special  vote,  or 
general  by-law,  constitute  for  that  purpose.  The  directors  of  a 
corporation,  without  authority  either  expressly  or  impliedly  de- 
rived from  the  stockholders,  have  no  right  to  execute  a  mortgage, 
or  to  authorize  any  one  to  do  so.  But  even  if  the  directors  exceed 
their  authority  in  borrowing  money  for  the  corporation,  and  exe- 
cuting a  mortgage  to  secure  the  repayment  of  it,  the  corporation 
cannot,  after  enjoying  the  benefit  of  the  loan,  and  acquiescing  in 
the  transaction,  question  their  authority.  The  stockholders  may 
restrain  the  directors,  or  other  officers,  in  any  attempt  to  transcend 
their  powers ;  but  if  they  remain  silent,  and  permit  them  to  make 

1  Hendeew.Pinkerton,  14  Allen  (Mass.),         3  Madison  Av.  Ch.  v.  Oliver  St.  Ch.  41, 
381.  N.  Y.  Superior  Ct.  369  ;  and  see  Walrath 

2  Hendce  v.  Pinkerton,  supra.  v.  Campbell,  28  Mich.  111. 

98 


WHO   MAY    GIVE   A   MORTGAGE.  [§   128. 

contracts,  or  execute  mortgages  upon  their  property',  and  receive 
the  benefits  of  the  loan,  tliey  will  be  estopped  to  say  that  the 
officers  were  not  authorized  to  do  these  acts.^ 

A  by-law  of  a  corporation  providing  that  in  the  management  of 
its  affairs  the  directors  shall  have  all  the  powers  which  the  cor- 
poration itself  possesses  invests  them  with  power  to  borrow  money, 
issue  bonds,  or  to  convey  in  mortgage  the  lands  of  the  corporation 
as  security .2 

The  authorities  are  quite  decisive,  however,  that  the  directors 
of  a  corporation,  in  the  absence  of  any  restriction  by  charter  or 
by-law,  may,  in  behalf  of  the  corporation,  mortgage  its  property 
to  secure  any  debts  they  are  authorized  to  incur,  without  express 
authority.^ 

A  corporation  ratifies  a  mortgage  made  by  its  directors  by  issu- 
ing bonds  under  it,  and  paying  interest  upon  them.^  The  ratifi- 
cation may  be  through  any  acts  which  show  that  the  corporation 
accepts  the  acts  of  its  officers  or  agents.^ 

128.  Must  use  corporate  seal.  —  A  corporation  cannot  make 
a  valid  mortgage  of  its  real  estate  except  by  an  instrument  under 
its  corporate  seal.^  But  an  impression  of  the  seal  of  a  corporation 
stamped  upon  and  into  the  substance  of  the  paper  upon  which  the 
instrument  is  written  is  a  good  seal,  although  no  wax,  wafer,  or 
other  adhesive  substance  be  used.'^    This  is  so  held  in  states  where 

1  Aurora  Agr.  &  Hort.  Soc.  v.  Paddock,  ^  !„  re  St.  Helen  Mill  Co.  3  Sawyer, 

80  111.  263  ;  Ottawa  Northern  Plank  Road  88 ;  Eagle  Woollen  Mills  Co.  v.  Monteith, 

Co.  V.  Murray,    15    111.  336;    Bradley  v.  2  Oregon,  28.5. 

Ballard,  55  111.  413.  ■*  Hendeev.  Pinkerton,  14  Allen  (Mass.), 

-'  Hendeei;. Pinkerton,  14  Allen  (Mass.),  381.    "After  our  own  courts  have  allowed 

381.  wafers  instead  of  wax,    and  paper,    with 

8  Hendce  v.  Pinkerton,  supra,  per  Fos-  gum  or  mucilage,  instead  of  wafers,  there 

ter,  J. ;  Bank  of  Middlebury  v.  Rutland,  seems  little  reason  why  we  should  hesitate 

&c.  R.  Co.  30  Vt.  159,  169  ;  Miller  v.  Rut-  also  to  allow  the  sufficiency  of  an  impres- 

land,   &c.  R.  Co.  36  Vt.  452,  474;  Sar-  sion  of  a  corporate  seal  on  the  paper  itself, 

gent   V.  Webster,   13   Met.   (Mass.)    497,  The  extent  to  which  this  practice  has  pre- 

503 ;    Burrill   v.    Nahant   Bank,  2    Met.  vailed  among  corporations ;  the  fact  that 

(Mass.)  163;  Augusta  Bank  v.  Hamblet,  the  seals  of  all  our  own  courts  have  been 

35  Me.  491  ;  Hoyt  v.  Thompson,  19  N.  Y.  from  an  early  period  of  the  same  descrip- 

207.     See  Forbes  v.  San  Rafael  Turnpike  tion  ;  the  sanction  of  numerous  decisions 

Co.  50  Cal.  340,  where  the  power  of  the  in  other  states,  and  in  the  federal  courts ; 

directors  was  limited.          ^  the  convenience  and  unobjectionable  char- 

■*  McCurdy's  Ajjpeal,  65  Pa.  St.  290.  acter  of  the  usage,  are  arguments  in  its 

5  Holbrook   v.   Chamberlin,  116  Mass.  favor  too  powerful  to  be  resisted,  in  the 

155,  and  cases  cited.  absence  of  any  decisive  authority  to  the 

99 


§  129.]  THE   PARTIES   TO   A  MORTGAGE. 

the  distinction  between  sealed  and  unsealed  instruments  is  inflex- 
ibly preserved.  But  where  a  scroll  is  not  treated  as  a  seal,  a  fac- 
simile of  the  seal  of  a  corporation  printed  with  ink  on  the  paper 
has  been  adjudged  not  to  be  a  valid  seal.^  "  No  definition  of  a 
seal  has  ever  been  made,"  says  Mr.  Justice  Foster,^  "  and  none 
can  be  suggested,  liberal  enough  to  include  the  method  adopted 
in  that  case,  which  would  not  destroy  the  distinction  uniformly 
adhered  to  in  the  usage  and  judicial  decisions  of  this  state.  If  we 
should  pronounce  every  scroll  a  seal,  we  should  speedily  be  called 
upon  to  take  the  next  step  of  pronouncing  every  flourish  to  be  a 
scroll,  and  nothing  would  remain  of  the  ancient  formality  of  seal- 
ing." 

4.  A  Poiver  to  Mortgage. 

129.  A  general  power  to  sell  does  not  include  power  to 
mortgage.  —  As  a  general  rule,  a  power  to  sell  and  convey  real 
estate  does  not  confer  a  power  to  mortgage,  and  a  mortgage  exe- 
cuted under  a  power  of  attorney,  authorizing  the  attorney  to  sell 
and  convey  only,  is  void.^  The  power  should  expressly  declare 
the  intention  that  the  agent  should  have  the  authority  to  mortgage 
the  property.  A  general  power  may  be  sufficient  if  it  appears  that 
the  principal  intended  his  agent  should  have  authority  to  raise 
money  on  mortgage,  and  the  nature  of  the  business  intrusted  to 
him  is  such  as  to  make  it  proper  for  him  to  exercise  this  power.*  A 
power  to  sell  for  the  expressed  purpose  of  raising  money  is  held  to 
imply  a  power  to  give  a  mortgage  which  is  only  a  conditional  sale.^ 

contrary."    Per  Foster,  J.    And  see  article  Australian,  &c.  Co.  v.  Mounsey,  4  K.  &  J, 

1  Am.  Law  Rev.  638,  by  Geo.  S.  Hale,  Esq.  733  ;  Bloomer  v.  Waldron,  3  Hill  (N.  Y.), 

1  Bates  V.  Bo  ton  &  N.  Y.  Cent.  11.  Co.  361  ;  Morris  v.  Watson,  \f)  Minn.  212. 
10  Allen  (Mass.),  251.  Otherwise  in  Pennsylvania.     Lancaster 

-  Li    Henilee   v.    Pinkerton,    14    Allen  v.  Dolan,   1   Rawle    (Pa.),  231;  Zane  v. 

(Mass.),  381.  Kennedy,   73   Pa.  St.    182;    Lancaster  v. 

In  Ranch  v.  Oil  Co.  8  W.  Va.  36,  a  Dolan,  1  Rawle  (Pa.),  231  ;  Presbyterian 

deed  of  trust  reciting  a  corporation  as  the  Corporation  v.  Wallace,  3  Rawle   (Pa.), 

grantor,  but  having  the  following  attesta-  109;  Gordon  v.  Preston,  1    Watts  (Pa.), 

tion :  "Witness  the  signature  and  seal  of  386;    Duval's  Appeal,  38   Pa.   St.    118; 

William  Scott,  president  of  said  Bienner-  Penn.  Life  Ins.  Co,  v.  Austin,  42  Pa.  St. 

hassett  Oil  Co.,  and  who  is  legally  author-  257. 

ized  by  the  board  of  directors  of  said  com-        *  See  Coutant  v.  Servoss,  3  Barb.  (N. 

pany  to  make  this  grant,  this  date  afore-  Y.)  128. 

written.      William    Scott    (Seal);"    the        &  Powell  on  Mortg.  c.  4  ;  Mills  u.  Banks, 

corporate  seal  not  being  used,  was  held  3  P.  Wms.  7  ;  Page  v.  Cooper,  16  Beav. 

not  to  be  the  deed  of  the  corporation.  396;  Earl  of  Oxford  v.  Albemarle,  17  L. 

3  De  Boucliout  v.  Goldsmid,  5  Ves.  210 ;  J.  N.  S.  Ch.  396. 
100 


WHO    MAY    GIVE    A    MORTGAGE.  [§  130. 

A  power  by  will,  or  otherwise,  to  raise  a  sum  of  money  upon  cer- 
tain land  authorizes  either  an  absolute  sale,  or  a  mortgage,  as  may 
be  deemed  expedient. ^ 

A  power  to  mortgage  given  in  general  terms,  without  specifying 
the  provisions  the  deed  shall  contain,  includes  the  power  to  make 
it  in  the  form  and  with  the  provisions  customarily  used  in  the 
state  or  country  where  the  land  is  situated.  Thus  such  a  power  to 
mortgage  given  in  England,  or  perhaps  in  some  American  States, 
would  authorize  the  giving  of  a  mortgage  with  a  power  to  sell  ;  ^ 
while  in  other  states,  in  which  these  powers  are  not  in  general  use, 
a  power  inserted  without  special  authority  would  be  void.  And 
in  regard  to  other  provisions,  as  for  instance  that  forfeiting  credit 
on  the  mortgage  upon  any  default  in  the  payment  of  interest,  and 
giving  the  mortgagee  the  option  thereupon  to  consider  the  whole 
sum  due,  a  general  power  to  mortgage  would  authorize  its  use 
in  some  states,  while  the  same  power  would  not  authorize  it  in 
others.^ 

130.  Mode  of  exercising  the  power.  —  It  is  an  established 
rule  of  conveyancing  that  a  deed  by  an  attorney  or  agent  must  be 
executed  in  the  name  of  the  principal.  In  Comhes  case,'^  "it 
was  resolved  that  when  any  has  authority,  as  attorney,  to  do  any 
act,  he  ought  to  do  it  in  his  name  who  gives  the  authority  ;  for  he 
appoints  the  attorney  to  be  in  his  place,  and  to  represent  his  per- 
son ;  and  therefore  the  attorney  cannot  do  it  in  his  own  name,  nor 
as  his  proper  act,  but  in  the  name,  and  as  the  act,  of  him  who 
gives  the  authority." 

A  mortgage  by  a  corporation  must  be  executed  in  its  name  by 
the  agent  or  officer  authorized  to  act  for  it  in  this  way.  Although 
it  may  purport  in  the  body  of  it  to  be  the  mortgage  of  a  corpora- 
tion, yet  if  executed  by  its  attorney  or  officer  in  his  individual 
name,  it  is  not  the  legal  mortgage  of  the  corporation,  and  does 
not  bind  it  except  in  equity.^ 

Although  not  bound  by  the  act  of  an  agent  in  giving  a  mort- 
gage, the  principal  may  ratify  it  by  taking  the  benefit  of  it,  or  he 

1  Wareham  i'.  Brown,  2  Vern.  153.  Mercantile  Ins.   Co.  6  Pick.  (Mass.)  198; 

2  See  chai.ter  xl. ;  Wilson  v.  Troup,  7     Elwell  v.  Shaw,  IG  Mass.  42. 

Johns.  (N.  Y.)  Ch.  25  ;  S.  C.  2  Cow.  195.  5  Love  v.   Sierra  Nevada,  &c.   Mining 

3  See  §  76 ;  Jesup  v.  City  Bank  of  Ra-  Co.  32  Cal.  639  ;  and  see  Brinley  v.  Mann, 
cine,  14  Wis.  331.  '  2  Ciish.  (Mass.)  337  ;  Sargent  v.  Webster, 

*9   Coke,   75;    and    see  Copeland    v.     13  Met.  (Mass.)  497. 

101 


§§  131-134.]  THE   PARTIES   TO   A   MORTGAGE. 

may  in  other  ways  so  act  with  reference  to  the  exercise  of  the 
power  as  to  preclude  himself  from  attempting  to  invalidate  the 
security.^ 

PART   II. 

WHO    MAY    TAKE    A    MORTGAGE. 

131.  In  general  any  one  capable  of  holding  real  estate  may 
be  a  mortgagee.  —  The  disabilities  which  prevent  the  making  of 
a  valid  mortgage  in  no  case  prevent  the  taking  of  a  mortgage, 
which  is  for  the  benefit  of  the  mortgagee.  An  infant  may  take  a 
mortgage.  He  is  bound  by  the  conditions  of  the  deed,  which  must 
be  wholly  good  or  void  altogether.^ 

132.  Aliens.  —  In  the  United  States  aliens  are  generally  em- 
powered to  hold  real  estate.  But  aside  from  any  statutory  privi- 
lege, a  mortgage  being  regarded  as  a  personal  interest,  the  debt 
the  principal  thing,  and  the  land  merely  as  an  incident,  an  alien 
was  held  entitled  to  hold  and  enforce  a  mortgage.^ 

133.  A  married  woman  may  at  common  law  be  a  mortgagee  ; 
but  she  cannot  enforce  a  foreclosure  of  a  mortgage  of  which  the 
equity  of  redemption  is  held  by  her  husband,  either  by  suit  at  law 
or  in  equity,  or  by  entry  to  foreclose  in  the  presence  of  two  wit- 
nesses. Though  her  title  as  mortgagee  still  continues,  she  is  de- 
barred from  all  proceedings  to  foreclose  the  mortgage  during  the 
continuance  of  the  marriage  relation.* 

134.  A  corporation,  though  not  expressly  authorized  by  its 
charter  or  by  statute  to  take  a  mortgage,  if  not  prohibited  may  do 
so,  provided  only  it  be  in  furtherance  of  the  objects  for  which  it 
was  created.^  A  railroad  company,  when  not  forbidden  to  take 
anything  but  money  in  payment  for  its  stock,  may  take  mortgages 
of  real  estate  securing  notes  or  bonds  given  for  the  stock.^ 

1  Perry  v.  Holl,  2  Gif.  138  ;  2  De  G.,  590;  Madison,  &c.  Plank  Road  Co.  v.  Wa- 
^.  &  J-  38.  tertown,  &c.  Plank  Road  Co.  5  Wis.  173. 

2  Parker  y.  Lincoln,  12  Mass.  16.  6  Clark  v.  Farrington,  11  Wis.  306; 
8  Hughes  u.  Edwards,  9  Wheat.  489.  Blunt  i'.  Walker,  lb.  334;  Cornell  v. 
*  Tucker  j;.  Fenno,  110  Mass.  311.  Hickens,  lb.  353;  Lyon  v.  Ewings,  17 
s  Gordon    v.   Preston,    1    Watts   (Pa.),  Wis.  61  ;  Andrews  w.  Hart,  lb.  297  ;  Wes- 

385;  Jackson  v.  Brown,  5  Wend.  (N.  Y.)     tern  Bank  of  Scotland  r.  Tallman.Ib.  530. 
102 


WHO   MAY   TAKE   A  MORTGAGE.  [§  135. 

A  bank  organized  under  the  national  banking  act  ^  is  author- 
ized to  take  and  hold  a  mortgage  of  real  estate  by  way  of  security 
for  debts  previously  contracted  ;  2  but  it  cannot  take  such  a  mort- 
gage as  security  for  a  debt  contracted  at  the  time  or  for  future 
advances.  Such  a  mortgage  is  invalid.^  Where  a  bank  holds  a 
mortgage  upon  land  already,  and  for  its  own  protection  pays  the 
amount  of  a  prior  lien,  and  then  takes  a  mortgage  for  this  sum, 
the  transaction  does  not  come  within  the  prohibition  of  the  statute 
as  to  taking  mortgages  for  debts  concurrently  created.* 

Where  a  state  bank  was  authorized  to  hold  mortgages,  but  it 
was  provided  by  statute  that  all  conveyances  of  real  estate  should 
be  made  to  the  president  of  the  bank,  it  was  held  that  a  mort- 
gage directly  to  the  bank  was  valid  notwithstanding  ;  °  for  it  was 
considered  that  the  object  was  not  to  prohibit  the  bank  from 
taking  title,  but  merely  to  facilitate  business  by  permitting  con- 
veyances to  be  made  for  the  benefit  of  the  bank  to  an  officer 
of  it. 

135.  Joint  mortgagees.  —  A  mortgage  given  to  secure  a  joint 
debt  creates  a  joint  estate  in  the  mortgagees.^  In  case  of  the 
death  of  one  of  such  mortgagees,  an  action  to  recover  the  debt 
or  to  enforce  the  mortgage  may  be  maintained  in  the  name  of 
the  survivor."  But  a  mortgage  given  to  two  or  more  persons  to 
secure  their  several  debts  is  several  and  not  joint ;  each  mort- 
gagee has  a  right  to  enforce  his  claim  under  the  mortgage,  in  a 
form  adapted  to  the  case,  and  of  course  the  surviving  mortgagee 
cannot  maintain  an  action  on  the  mortgage  to  enforce  payment  of 
the  debt  due  the  deceased  mortgagee.^  Such  a  mortgage  does  not 
constitute  the  mortgagees  trustees  one  for  the  other,  at  least  be- 
fore the  law  day.^ 

1  1864,  June  3,  §§  8,  28.  more  persons  shall  be  construed  to  create 

2  Allen  V.  First  Nl.  Bk.  of  Xenia,  23  estates  in  common.  Gen.  Stat.  c.  89, 
Ohio  St.  97.  §  14.    It  leaves  the  nature  of  the  estate 

8  Kansas  Valley  Bank  v  Kowell,  2  Dill,  open  to  inquiry. 

371.                        '  "  Blake   v.    Sanborn,   8  Gray   (Mass.), 

*  Ornn  v.  Merchants'  Nl.  Bank,  16  Kans.  154  ;  Webster  v.  Vandeventer,  6  lb.  428. 

341.  s  Gilson   v.   Gilson,   2    Allen    (Mass.) 

5  Kennedy  «.  Knight,  21  Wis.  340.  115,    117;    Burnett    v.    Pratt,    22    Pick. 

0  Apple  ton  I'.  Boyd,  7  Mass.  131.  (Mass.)   556;    Brown  v.  Bates,  55    Me. 

In   Massachusetts,   mortgages   are  ex-  520. 

pressly  excepted   from   the  provision   of  ^  Bates  v.  Coe,  10  Conn.  280,  293. 
statute  that  conveyances  made  to  two  or 

103 


§  135.]  THE   PARTIES   TO   A   MORTGAGE. 

But  whether  the  debt  secured  be  joint  or  several,  after  foreclos- 
ure the  mortgagees  become  tenants  in  common  of  the  land.^ 

A  mortgage  to  husband  and  wife  upon  the  death  of  the  hus- 
band vests  in  the  wife.^ 

A  mortgagee  of  an  vindivided  half  of  a  parcel  of  land  does  not 
become  a  tenant  in  common  with  the  owner  of  the  other  half, 
until  his  title  has  become  absolute  by  a  completed  foreclosure. 
Before  that  time  the  mortgage  is  only  a  lien,  and  the  estate  is  to 
be  dealt  with  as  belonging  to  the  mortgagor.^ 

1  Goodwin  v.  Richardson,  11  Mass.  469;  -  Draper  v.  Jackson,  16  Mass.  480. 

Eandall  v.  Phillips,  3  Mason,  378 ;  Don-  ^  Norcross  v.  Norcross,  105  Mass.  265, 

nels  V.  Edwards,  2  Pick.  (Mass.)  617  ;  Bur-  and  cases  cited, 
nett  V.  Pratt,  supra. 

104 


CHAPTER  IV. 

WHAT  MAY  BE  THE   SUBJECT   OF  A  MOETGAGE. 

1.  Existing  Interests  in  Real  Property. 

136.  Every  kind  of  interest  in  real  estate  may  be  mortgaged 
if  it  be  subject  to  sale  and  assignment.^  It  does  not  matter  that 
it  is  a  right  in  remainder  or  reversion,  a  contingent  interest,  or  a 
possibility  coupled  with  an  interest,  if  it  be  an  interest  in  the 
land  itself.^  But  an  interest  in  the  proceeds  of  land  ordered  to 
be  sold  and  distributed  among  legatees  is  not  a  subject  of  mort- 
gage.^ A  mere  personal  right  or  interest,  as  for  instance  a  right 
of  preemption  of  public  lands,  is  of  course  not  susceptible  of  mort- 
gage ;  *  yet  the  land  subject  to  preemption  may  be  mortgaged.^ 

The  Code  of  California  states  the  general  rule  of  law  upon  this 
subject,  in  the  provision  that  any  interest  in  real  property  which 
is  capable  of  being  transferred  may  be  mortgaged.^ 

Such,  for  instance,  is  the  interest  of  one  who  holds  a  bond  for 
title ;  '^  and  even  the  interest  of  one  in  possession  under  a  parol  con- 
tract to  purchase  ;  ^  or  the  interest  of  the  holder  of  school  certifi- 
cates until  forfeited  by  non-fulfilment  of  the  conditions  of  sale,^ 
or  of  a  certificate  of  stock  in  an  unincorporated  company  repre- 
senting an  interest  in  real- estate. ^'^ 

A  mere  possibility  or  exj)ectancy,  not  couple'd  with  any  interest 
in  or  growing  out  of  the  property,  cannot  be  made  the  subject  of 
a  mortgage.^i    A  mere  expectancy  of  acquiring  property,  without 

1  Neligh  V.  Mechenor,  11  N.  J.  Eq.  539;  "^  Baker  v.  Bishop  Hill  Colony,  45  111. 

Miller  v.  Tipton,  6  Blackf.  (Ind.)  238.  264. 

-  Wilson  V.   Wilson,  32  Barb.  (N.  Y.)  »  Sinclair  v.  Armitage,    12   N.  J.  Eq. 

328;  John  v.  Nut,  19  Wend.  (N.  Y.)  659.  174 ;  Bull  v.  Sykes,  7  Wis.  449. 

8  Gray  v.  Smith,  3  Watts  (Pa.),  289.  »  Mowry  v.  Wood,  12  Wis.  413  ;  Dodge 

4  Penn  i;.  Ott,  12  La.  Ann.  233;  Gilbert  v.  Silverthorn,    12    Wis.  644;    Jarvis    v. 
r.  Penn,  12  La.  Ann.  235;  Broussard  v.  Dutcher,  16  Wis.  307. 

Dugas,  5  La.  Ann.  585.  i'^  Durkee  v.  Stringham,  8  Wis.  1. 

5  Whitney  v.  Buckman,  13  Cal.  536.  "  Skipper  v.  Stokes,  42  Ala.  255;  Pur- 

6  Civil  Code,  §  2947.  cell  v.  Mather,  35  Ala.  570. 

105 


§§  137,  138.]      WHAT   MAY   BE   THE   SUBJECT   OF   A   MORTGAGE. 

a  present  interest  in  it,  is  not  a  subject  of  sale,  and  therefore  not 
of  mortgage.  "  The  next  cast  of  a  fisherman's  net  "  lias  long 
been  used  as  an  illustration  of  a  mere  expectancy,  not  the  subject 
of  grant.  In  a  late  case  in  Massachusetts  it  was  sought  to  sub- 
stantiate such  a  sale,  and  the  court  were  obliged  to  adjudge  that 
a  man  has  no  salable  interest  in  halibut  in  the  sea.  There  is  a 
possibility,  they  say,  the  man  may  catch  halibut,  but  he  has  no 
actual  or  potential  interest  in  the  fish  until  he  has  caught  them.^ 

137.  An  estate  tail  may  be  mortgaged  by  the  life  tenant.  — 
Such  tenant  cannot  prejudice  the  rights  of  the  remaindermen,  but 
can  convey  whatever  interest  he  has.^  A  contingent  or  possible 
interest  may  also  be  the  subject  of  a  mortgage.^  Reversions  and 
remainders,  being  capable  of  assignment,  may  be  the  subject  of 
a  mortgage.'* 

138.  A  mortgage  passes  the  interest  of  the  mortgagor  what- 
ever it  may  be,  —  When  a  mortgage  is  made  of  an  estate  or  in- 
terest already  incumbered  in  any  manner,  the  mortgage  of  course 
attaches  only  to  the  intercBt  then  remaining  in  the  mortgagor. 
Upon  the  discharge  of  any  prior  incumbrance,  the  mortgage  inter- 
est has  the  full  advantage  of  the  discharge.  If  the  mortgagor  ac- 
quires any  title  after  making  the  mortgage,  that,  as  a  general  rule, 
accrues  to  the  benefit  of  the  mortgage  title. 

Unless  the  conveyance  in  mortgage  be  limited  in  its  operation 
it  passes  all  the  interest  the  mortgagor  has  in  the  property  em- 
braced in  it.  It  passes  any  reversionary  interest  he  has ;  for  in- 
stance, a  mortgage  of  land  subject  to  a  homestead  right  conveys 
the  reversionary  interest  after  the  expiration  of  the  homestead 
estate,  although  the  wife  did  not  join  in  it.^  If  there  be  an  out- 
standing contract  of  sale  of  which  notice  is  imparted  by  the  record 
or  by  the  vendee's  possession,  the  mortgage  is  subject  to  the  ven- 
dee's right  to  purchase  ;  and  upon  a  foreclosure  and  sale  under  the 
mortgage,  the  purchaser  takes  the  property  subject  to  the  same 
right.^ 

1  Low  V.  Pew,  108  Mass.  347.  The  3  "Wilson  v.  Wilson,  32  Barb.  (N.  Y.) 
other  maxim  (not  of  the  law)  is  applica-    328. 

ble:  "First  catch  your  fish,"  &c.  •*  2  Stor}'  Eq.  Jur.  §   1021;    Curtis  v. 

2  Hosmer   v.    Carter,   68  111.  98.     The     Eoot,  20  111.  522. 

limitation  was  to  "her  body  heirs."  ^  Smith  t;.  Provin,  4  Allen  (Mass.),  516. 

<5  Laverty  v.  Moore,  33  N.  Y.  658. 
106 


EXISTING   INTERESTS   IN   REAL    PROPERTY.       [§§  139,  140. 

A  mortgage  may  be  made  of  any  imperfect  title  which  the 
mortgagor  has,  as  for  instance  an  imperfect  Spanish  title  which 
was  subject  to  sale  and  assignment.^ 

A  clause  in  a  mortgage,  "  excepting  therefrom  so  much  of  said 
tracts  as  have  been  conveyed  by  the  mortgagor  by  deed  to  differ- 
ent individuals,"  does  not  reserve  from  the  operation  of  the  mort- 
gage a  portion  of  the  premises  covered  by  a  prior  unrecorded 
mortgage. 2 

A  mortgage  of  several  lots  of  land  described  by  numbers  on  a 
plan,  and  by  courses  and  distances,  will  pass  all  the  title  the  mort- 
gagor has  in  the  lots,  although  he  has  only  a  mortgage  title  to 
one  of  them.3  g^^  where  a  mortgagor  became  the  husband  of  the 
mortgagee,  and  the  two  joined  in  a  second  mortgage  of  the  prem- 
ises to  secure  a  prior  debt  of  the  husband,  it  was  held  that  the 
wife's  interest  under  the  first  mortgage  was  not  thereby  affected. 
She  had  not  joined  in  the  mortgage  to  assign  her  own  mortgage, 
but  to  effectually  pass  the  equity  of  redemption."^  So  a  mortgage 
of  all  the  land  and  right  and  claim  to  land  which  the  grantor  has 
in  a  certain  town  does  not  include  land  to  which  he  has  only  a 
possibility  of  a  reversion  on  the  non-performance  of  a  condition 
subsequent.^ 

139.  Mortgage  of  a  mortgagee.  —  One  may  mortgage  an  in- 
terest in  real  estate  which  he  himself  holds  in  mortgage.^  He 
conveys  all  the  interest  he  has ;  and  if  he  afterwards  acquire  an 
absolute  title,  the  second  mortgagee  by  foreclosing  his  mortgage 
acquires  an  absolute  estate.'^ 

140.  A  mortgage  may  be  made  of  rents  due  under  a  lease, 
and  although  a  right  of  entry  be  given  to  the  mortgagee  the  mort- 
gage is  a  mere  security,  like  any  other  mortgage  of  real  estate, 
and  the  mortgagor  remains  the  real  owner  until  foreclosure  and 
sale.^  A  mortgage  may  be  made  of  a  ditch  for  mining  purposes, 
the  grantee  having  authority  to  collect  the  rents  and  profits  of  it.^ 

1  Massey  v.  Papin,  24  How.  362.  6  Cutts  v.  York  Manf.  Co.  18  Me.  190. 

2  Eaton  V.  White,  18  Wis.  517.  This  point  was  not  before  the  court. 

3  Murdock  v.  Chapman,  9  Gray  (Mass.),  ■?  Murdock  v.  Chapman,  9  Gray  (Mass.), 
156.  156.     See  Power  v.  Lester,  23  N.  Y.  527. 

*  Power  V.  Lester,  23  N.  Y.  527.  *  Van  Kensselaer  v.  Dennison,  35  N. 

5  Richardson   v.    Cambridge,    2    Allen     Y.  393. 
(Mass.),  118.  9  Kidd  v.  Teeple,  22  Cal.  255. 

107 


§§  141,  142.]      WHAT   MAY   BE   THE   SUBJECT   OF   A   MORTGAGE. 

141.  A  mortgage  given  by  one  part  owner  of  land  upon  pur- 
chasing the  remaining  portion,  which  describes  the  whole  parcel,  is 
construed  to  embrace  the  entire  interest,  and  not  merely  the  un- 
divided interest  conveyed  by  the  mortgagee.^ 

The  owner  of  certain  land  having  conveyed  an  undivided  half 
of  it  by  a  deed  fully  describing  it,  afterwards  conveyed  the  remain- 
ing undivided  half  to  the  same  grantee,  and  received  from  him  at 
the  same  time  a  mortgage  conveying  "  the  following  real  estate  in 
Stamford :  viz.,  the  same  and  all  the  real  estate  described  in  the 
deed  of  the  said  grantor  to  me  dated  Nov.  18,  1847,"  being  the 
first  named  deed.  The  mortgage  was  construed  to  cover  the  whole 
title  and  interest  acquired  by  the  mortgagor  by  the  two  deeds, 
and  not  merely  the  undivided  half  conveyed  to  him  by  the  former 
deed.2 

A  mortgage  by  a  tenant  in  common  of  a  moiety  of  the  land 
passes  only  his  interest,  although  he  at  the  time  holds  a  power 
from  the  owner  of  the  other  moiety,  and  the  mortgage  purports 
to  be  of  the  whole  estate,  if  it  does  not  purport  to  be  made  by 
virtue  of  his  power  from  the  other  owner,  as  well  as  in  his  own 
right.^ 

142.  The  mortgage  of  a  building  carries  with  it  the  land  on 
which  it  stands  and  which  is  essential  to  its  use,  if  such  appears 
to  have  been  the  intention  of  the  parties.^  Thus  a  mortgage 
made  to  secure  advances  to  enable  the  mortgagor  to  erect  a  build- 
ing on  leased  land  of  "  all  his  right,  title,  and  interest,  which  he 
now  has  in  the  foundation  or  stone  work  of  said  building,  and 
which  he  may  have  in  and  unto  said  building,  during  its  erection 
and  completion,  and  after  it  is  completed,"  passes  the  land  on 
which  the  building  stands.^  The  right  which  the  grantor  has  in 
the  foundation,  stone  work,  and  building  is  not  merely  or  mostly  a 
right  to  the  materials  of  which  they  are  composed,  but  the  right 
of  having  them  on  the  premises  as  part  of  a  structure,  with  the 
right  to  use  and  occupy  them  for  a  long  period  of  time.  It  is  a 
grant  of  his  right  to  the  use  and  occupation  of  the  land  under  the 
lease. 

As  a  general  rule,  a  building  erected  upon  the  land  of  another 

1  Potts  V.  Blauchard,  19  La  Ann.  167.  *  Wilson  v.  Hunter,  14  Wis.  683. 

2  Carpenter  v.  Millard,  38  Vt.  9.  ^  Greenwood     v.     Murdock,     9    Gray 
8  Shirras  v.  Caig,  7  Cranch,  34.                   (Mass.),  20. 

108 


EXISTING  INTERESTS   IN   REAL   PROPERTY.  [§  143. 

becomes  a  part  of  the  realty,  and  it  is  only  by  an  express  agree- 
ment that  one  can  have  a  separate  property  in  such  a  building 
as  a  chattel,  with  a  right  to  remove  it.  If  one  having  a  contract 
for  the  purchase  of  a  lot  of  land  erect  a  house  upon  it,  in  pursu- 
ance of  an  agreement  that  he  will  do  so,  and  that  on  receiving  a 
deed  of  the  land  he  will  mortgage  it  to  the  owner  to  secure  the 
purchase  money,  he  cannot,  before  receiving  a  deed  of  the  land, 
mortgage  the  house  as  personal  property  to  another.  This  agree- 
ment, instead  of  being  an  agreement  that  the  house  may  be  held 
separate  from  the  land,  is  in  effect  an  agreement  that  the  build- 
ing and  land  shall  be  united  and  held  together.^ 

143.  House  moved  from  the  mortgaged  land.  —  A  mortgage 
was  made  of  a  lot  of  land  upon  which  was  a  dwelling-house.  Sub- 
sequently, and  without  the  knowledge  or  consent  of  the  mort- 
gagee, the  mortgagor  removed  the  house  from  the  lot  upon  which 
it  stood,  and  placed  it  upon  an  adjoining  lot.  It  was  held  that 
the  mortgagee  retained  his  lien  upon  the  dwelling-house,  and  that 
the  house  might  be  sold  after  first  applying  the  lot  covered  by  the 
mortgage  towards  satisfying  it.  The  adjoining  lot  was  owned  by 
the  wife  of  the  mortgagor,  and  the  removal  was  with  her  knowl- 
edge.2  By  agreement,  express  or  implied,  between  the  owner  of 
real  estate  and  the  owner  of  buildings,  the  latter  may  annex  the 
buildings  to  the  realty,  without  their  becoming  part  of  it.  So  in 
the  case  stated,  the  house  did  not  necessarily  become  a  part  of  the 
lot  upon  which  it  was  placed  by  the  removal.  Under  such  circum- 
stances there  is  no  reason  why  the  mortgagee  should  not  have 
the  benefit  of  the  security  for  which  he  contracted.  No  question 
arises  in  this  case  as  to  the  effect  of  substantial  alterations  in  the 
building,  which  might  sometimes  affect  or  change  the  title  to  prop- 
erty altered  from  its  original  form.  Such  was  the  case  where  a 
mortgagor  removed  a  dwelling-house  from  the  mortgaged  prem- 
ises, and  used  the  materials  in  the  construction  of  a  house  upon 
another  lot  of  land,  and  afterwards  sold  the  house  and  lot.  The 
materials  having  thus  become  a  part  of  the  freehold,  the  right  of 
property  therein  vested  in  the  grantee  of  the  land ;  and  therefore 
the  mortgagee  could  not  maintain  trover  against  the  purchaser, 
either  for  the  new  house  or  for  the  old  materials  used  in  its  con- 

1  Milton  V.  Colby,  5  Met.  (Mass.)  78.  -  Hamlin    v.   Parsons,   12  Minn.    108; 

and  see  Hutchins  v.  King,  1  Wall.  53. 

109 


§  144.]         WHAT   MAY   BE   THE   SUBJECT    OF   A   MORTGAGE. 

struction.^  "  The  general  rule  is,"  says  Mr.  Justice  Wilde, 
"  that  the  owner  of  property,  whether  the  property  be  movable 
or  immovable,  has  the  right  to  that  which  is  united  to  it  by  ac- 
cession or  adjunction.  But  by  the  law  of  England  as  well  as  by 
the  civil  law,  a  trespasser,  who  wilfully  takes  the  property  of 
another,  can  acquire  no  right  in  it  on  the  principle  of  accession, 
but  the  owner  may  reclaim  it,  whatever  alteration  of  form  it  may 
have  undergone,  unless  it  be  changed  into  a  different  species  and 
be  incapable  of  being  restored  to  its  former  state  ;  and  even  then 
the  trespasser,  by  the  civil  law,  could  acquire  no  right  by  the  ac- 
cession, unless  the  materials  had  been  taken  away  in  ignorance  of 
their  being  the  property  of  another.  But  there  are  exceptions  to 
the  general  rule. 

"  It  is  laid  down  by  Molloy  as  a  settled  principle  of  law,  that 
if  a  man  cuts  down  trees  of  another,  or  takes  timber  or  plank 
prepared  for  the  erecting  or  repairing  of  a  dwelling-house,  nay, 
though  some  of  them  are  for  shipping,  and  builds  a  ship,  the 
property  follows,  not  the  owners  but  the  builders.^  .... 

"  In  the  present  case  it  cannot  be  questioned  that  the  newly 
erected  dwelling-house  was  a  part  of  the  freehold,  and  was  the 
property  of  the  mortgagor.  The  materials  used  in  its  construc- 
tion ceased  to  be  personal  property,  and  the  owner's  property  in 
them  was  divested  as  effectually  as  though  they  had  been  de- 
stroyed. It  is  clear,  therefore,  that  the  plaintiff  could  not  main- 
tain an  action,  even  against  the  mortgagor,  for  the  conversion  of 
the  new  house.  And  it  is  equally  clear  that  he  cannot  maintain 
the  present  action  for  the  conversion  of  the  materials  taken  from 
the  old  house.  The  taking  down  of  that  house  and  using  the  ma- 
terials in  the  construction  of  the  new  building  was  the  tortious 
act  of  the  mortgagor,  for  which  he  alone  is  responsible." 

144.  But  the  lien  of  the  mortgage  is  held  to  be  removed 
from  fixtures  severed  from  the  realty.  —  By  severance  they  be- 
come personal  property,  and  when  taken  away  from  the  realty 
are  freed  from  the  lien  of  the  mortgage.^  A  house  having  been 
floated  off  the  lot  covered  by  the  mortgage  into  an  adjacent  street 

1  Peirce  v.  Goddard,  22  Pick.  (Mass.)  Finley,   19  Barb.   (N.  Y.)  317.    But  see 
559.  Hutchins   v.   King,    1    Wall.    53,  59,  per 

2  Mol.  de  Jure  Mar.  lib.  2,  c.  1,  §  7.  Field,  J.,  cited  §  145- 

3  Hill  V.  Gwin,  51  Gal.  47  ;  Gardner  v. 

110  '  ' 


EXISTING   INTERESTS   IN   REAL   PROPERTY.       [§§  145,  146. 

by  a  flood,  was  sold  by  the  owner  to  a  person  who  had  notice  of  all 
the  circumstances.  An  action  was  brought  to  foreclose  the  mort- 
gage upon  the  land  and  the  house  then  standing  in  the  street. 
The  court  held  that  the  house  was  effectually  removed  from  the 
operation  of  the  mortgage  lien  ;  and  that  so  far  as  the  legal  effect 
of  the  removal  was  concerned  it  was  immaterial  whether  the  sev- 
erance was  by  the  act  of  God,  as  in  this  case,  or  the  act  of  man.^ 

145.  A  mortgage  of  wood  not  standing  on  the  land  of  the 
mortgagor  is  a  mortgage  of  personal  property,  and  a  record  of  it 
as  a  mortgage  of  real  estate  is  ineffectual.^  But  growing  wood  or 
timber  is  a  portion  of  the  realty,  and  is  embraced  in  a  mortgage 
of  the  land.  In  a  case  before  the  Supreme  Court  of  the  United 
States,^  Mr.  Justice  Field  declared  that  the  mortgage  covers  the 
timber  after  it  is  cut  as  well  as  before  ;  that  the  sale  of  it  by  the 
mortgagors  does  not  divest  the  lien  of  the  mortgage ;  that  the 
purchaser  of  the  timber  takes  it  subject  to  this  paramount  lien  ; 
and  that  the  holders  of  the  mortgage  can  follow  it  and  take  pos- 
session of  it,  and  hold  it  until  the  amount  due  upon  the  mortgage 
is  paid. 

146.  A  mortgage  of  improvements  conveys  no  title  to  the 
land  itself.  It  passes  only  a  right  to  the  improvements  placed 
upon  the  land  by  the  mortgagor,  or  an  equitable  right  to  compen- 
sation for  them  in  case  the  owner  of  the  land  should  take  posses- 
sion. A  subsequent  acquisition  of  the  title  to  the  land  by  the 
mortgagor  does  not  in  such  case  enure  to  the  benefit  of  the  mort- 
gagee.'* 

A  mortgage  of  a  building  erected  on  leased  land  under  an 
agreement  that  the  lessee  might  remove  it,  or  the  lessor  should 

1  Buckout  V.   Swift,  27   Cal.  433.     Mr.  from  the  operation  of  the  mortgage,  for 

Justice  Shafter,  delivering  the  opinion  of  the  reason  that  it  has  ceased  to  be  a  thing 

the  court,  said  :  —  real ;    in   the   other,   mere    materials  are 

"A  building,  severed  and  removed  from  brought  under    the   lien,  for   the   reason 

mortgaged  lands,  of  which  lands  it  formed  that  tliey  have  become  a  structure  by  com- 

a  part  when   the  mortgage  was  given,  is  bination,  and  the  structure  has  become  a 

disincumbered  of  the    lien,   substantially  thing  real  by  position." 

on    the   same   principle  that   a   building,  -  Douglas      v.     Shumway,     13      Gray 

erected  upon  the  lands  after  the  giving  of  (Mass.),  498. 

the  mortgage,  is  subject  to  the  lien.     In  ^  Hutchins  v.  King,  1  Wall.  53,  59. 

the  first  case,  the  building  is  withdrawn  •*  Mitchell  v.  Black,  64  Me.  48. 

Ill 


§§  147-149.]       WHAT   MAY   BE   THE   SUBJECT   OF   A  MORTGAGE. 

pay  for  it  at  its  appraised  value,  is  a  mortgage  of  realty  falling 
within  the  designation  of  a  chattel  real  at  common  law.^ 

147.  The  lien  of  a  mortgage  extends  to  all  improvements 
and  repairs  subsequently  made  upon  the  mortgaged  premises, 
whether  made  by  the  mortgagor  or  by  a  purchaser  from  him  with- 
out actual  notice  of  the  existence  of  the  mortgage.^  Thus  a  mort- 
gage of  a  ditch  or  flume  in  process  of  construction  includes,  with- 
out any  special  mention,  all  improvements  or  fixtures  then  on  the 
line  located  for  the  flume,  as  well  as  those  which  may  afterwards 
be  put  thereon.^ 

148.  An  abstract  of  title  delivered  by  the  owner  of  land  to 
the  mortgagee's  attorney,  for  the  purpose  of  decreasing  the  ex- 
penses of  searching  the  title,  maybe  regarded  as  part  of  the  secu- 
rity for  the  loan,  and  accordingly  it  has  been  held  that  the  mort- 
gagor is  not  entitled  to  the  possession  of  it  until  the  mortgage  is 
paid.  In  case  of  a  sale  of  the  mortgage,  or  of  a  foreclosure,  it 
would  be  necessary  that  the  mortgagee  should  have  it,  or  that  an- 
other should  be  made.* 

2.  Accessions  to  the  Mortgaged  Property/. 

149.  At  common  law,  nothing  can  be  mortgaged  that  does 
not  belong  to  the  mortgagor  at  the  time  the  mortgage  is  made.^ 
"  It  is  a  common  learning  in  the  law,  that  a  man  cannot  grant  or 
charge  that  which  he  hath  not."  ^  He  must  have  a  present  prop- 
erty, either  actual  or  potential,  in  the  thing  sold  or  mortgaged.'^ 
Therefore  at  law,  although  a  mortgage  in  terms  is  made  to  cover 
after  acquired  property,  yet  after  such  property  is  acquired,  an 
execution  levied  upon  it  as  the  property  of  the  mortgagor,  or  a 
sale  by  him,  will  prevail  over  the  mortgage.^ 

1  Griffin  v.  Marine  Co.  of  Cliicago,  52  v.  Amis,  16  La.  Ann.  225  ;  Ross  v.  "Wil- 
111.  130.  son,   7  Bush   (Ky.),  29;    and  see  Coe  v. 

2  Martin  v.  Beatty,  54  111.  100;  Rice  v.  Columbus,  &c.  R.  Co.  10  Ohio  St.  391  ; 
Dewey,  54  Barb.  (N.  Y.)  455.  Lunn  v.  Thornton,  1  Com.  B.  379. 

**  Union,  &c.  Co,  v.  Murphy's  Co.   22  ^  Perkins,  tit.  Grant,  §  65. 

Cal.  620.  "  Looker  v.  Peckwell,  38  N.  J.  L.  253  ; 

4  Holm  u.  Wust,   11   Abb.  (N.  Y.)  Pr.  Smithhurst  i'.  Edmunds,  14  N.J.  Eq.  408  ; 

N.  S.  113.                                                  •  Benjamin  on  Sales,  §§  78-84. 

6  Moody   V.  Wright,   13   Met.    (Mass.)  **  Looker  v.  Peckwell,  supra,  and  cases 

17 ;    Jones    v.   Richardson,   10  lb.   481  ;  cited. 
Pierce  v.  Emery,  32  N.  H.  484  ;  Amouett 

112 


ACCESSIONS   TO   THE   MORTGAGED  PROPERTY.  [§  150. 

But  a  different  rule  prevails  in  equity.^  Judge  Story ,2  after  an 
elaborate  examination  of  the  question,  in  stating  the  result  of  it 
says :  "  It  seems  to  me  the  clear  result  of  all  the  authorities,  that 
wherever  the  parties  by  their  contract  intended  to  create  a  posi- 
tive lien  or  charge,  either  upon  real  or  personal  property,  whether 
then  owned  by  the  assignor  or  not,  or  if  personal  property, 
whether  it  is  then  in  esse  or  not,  it  attaches  in  equity  as  a  lien  or 
charge  upon  the  particular  property,  as  soon  as  the  assignor  or 
contractor  acquires  a  title  thereto  against  the  latter,  and  all  per- 
sons asserting  a  claim  thereto  under  him,  either  voluntarily  or 
with  notice,  or  in  bankruptcy." 

150.  Products  of  the  soil.  —  Upon  this  principle  a  valid  mort- 
gage may  be  made  by  an  owner,  or  lessee  in  possession  of  land,  of 
a  crop  to  be  raised  by  him  the  coming  season,  or  of  crops  to  be 
grown  within  a  certain  period.^  It  is  a  general  rule  that  a  thing 
which  has  a  potential  existence  may  be  mortgaged.  "  Land  is 
the  mother  and  root  of  all  fruits,"  says  Lord  Hobart.^  "  There- 
fore he  that  hath  it  may  grant  all  fruits  that  may  arise  from  it 
after,  and  the  property  shall  pass  as  soon  as  the  fruits  are  extant." 

A  landlord  has  no  such  interest  in,  or  title  to,  crops  grown  on 
the  rented  lands  as  can  be  made  the  subject  of  a  valid  mortgage.^ 

A  mortgage  of  grain  "  now  standing  and  growing  "  in  a  field 
does  not  cover,  as  against  an  attaching  creditor,  grain  which  had 
at  the  time  of  the  execution  of -the  mortgage  been  cut.^ 

Under  a  mortgage  of  a  greenhouse  and  nursery,  together  with 
the  shrubs  and   plants   belonging  to  the  same,  new  plants  and 

1  In  Langton  v.  Horton,  1  Hare,  549.  (N.  Y.)  37  ;  Barnard  v.  Eaton,   2  Cush. 

In  a  recent  case  in  Kentucky,  however,  (Mass.)  295,  per  Shaw,  C.  J. ;  Comstock 

it  is  said  that  if  such  a  mortgage  is  en-  v.  Scales,  7  Wis.  159;  Hutchinson  y.  Ford, 

forcible   in  equity  at   all,  it  can   only  be  9  Bush  (Ky.),  318. 

enforced  as  a  right  under   the  contract,  *  Grantham    v.   Hawley,  Hobart,    132. 

and  not  as  a  trust  attached  to  the  prop-  He  further  remarks  that  "  a  person  may 

erty.     Ross  v.  Wilson,  supra.  grant  all  the  tithe  wool  that  he  shall  have 

'  Mitchell  t'.  Winslow,  2  Story,  630;  and  in  such  a  year ;  yet  perhaps  he  shall  have 

see  Smithhurst  v.  Edmunds,  supra.  none  ;    but  a  man  cannot  grant   all  the 

3  Arques  v.  Wasson,  51  Cal.  620 ;  Leh-  wool  that  shall  grow  upon  his  sheep  that 

man  v.  Marshall,  47  Ala.  362  ;  Jones  v.  he  shall  buy  hereafter ;  for  there  he  hath 

Webster,  48  Ala.  109  ;  and  see  Van  Hoozer  it  neither  actually  nor  potentially." 

V.  Cory,  34  Barb.   (N.  Y.)  12;  Stover  v.  ^  Broughton  v.  Powell,  52  Ala.  123. 

Eycleshimer,  3  Keyes  (N.  Y.),  620.     See,  ^  pord  v.  Sutherlin,  2  Mont.  440. 
contra,  at  law,  Milliman  v.  Neher,  20  Barb. 

VOL.  I.                                8  113 


§  151.] 


WHAT   MAY   BE   THE   SUBJECT   OF   A   MORTGAGE. 


shrubs,  the  growth  of  cuttings  from  those  growing  at  the  time  of 
the  mortgage,  pass  to  the  mortgagee  by  accession.^ 

151.  Crops  not  sown.  —  A  valid  mortgage  may  be  made  of  a 
crop  before  it  is  raised,^  and  although  the  seed  of  it  has  not  been 
sown.2  A  mortgage  of  crops  by  one  who  is  cultivating  a  farm  upon 
shares  covers  only  his  share.^  Possession  by  a  prior  mortgagee  of 
a  crop  is  notice  of  his  rights  to  subsequent  purchasers  or  incum- 
brancers.^ The  mortgage  in  equity  attaches  as  soon  as  the  crop 
comes  into  existence.*^ 

The  crop  is  a  chattel  interest,  and  the  mortgage  of  it  should  be 
recorded  as  a  chattel  mortgage.  When  so  recorded  one  who  pur- 
chases and  removes  the  crop,  without  the  knowledge  of  the  mort- 
gagee, takes  it  subject  to  the  rights  of  the  mortgagee,  who  may 
recover  the  property  if  it  can  be  identified,  and  if  not,  he  may  re- 
cover the  value  of  it  from  such  purchaser.''  The  mortgagee  is  en- 
titled to  the  possession  of  the  crop,  when  it  is  matured  and  gath- 
ered, and  may  then  maintain  an  action  to  recover  it  or  its  value.^ 
Such  a  mortgage  passes  a  mere  equitable  interest  while  the  crop  is 
growing,  but  after  severance  the  equitable  interest  ripens  into  a 


1  Bryant  i'.  Pennell,  61  Me.  108.  The 
plaintiff  attached  so  much  of  the  stock  of 
plants  and  shrubs  as  were  not  covered  by 
the  mortgage.  His  counsel  claimed  that 
the  maxim,  "Partus  sequitur  ventrem," 
did  not  apply ;  that  it  might  as  well  be 
contended  that  trees  raised  from  the  seed 
of  apples  picked  from  a  mortgaged  tree 
passed  under  the  mortgage,  as  to  say  the 
cuttings  did. 

2  Ellett  V.  Butt,  1  Woods,  214;  Robin- 
son V.  Mauldin,  11  Ala.  977. 

3  Butt  V.  Ellett,  19  Wall.  544  ;  Apper- 
son  V.  Moore,  30  Ark.  56 ;  Comstock  v. 
Scales,  7  Wis.  159. 

The  statute  of  Mississippi,  providing 
that  mortgages  may  be  made  of  cotton 
crops  to  be  produced  within  fifteen  months, 
is  merely  declaratory  of  the  law,  with  a 
limitation  as  to  the  time  within  which  the 
crop  must  be  produced.  Act  Feb.  18, 
1867 ;  Sillers  v.  Lester,  48  Miss.  513 ; 
Ellett  V.  Butt,  1  Woods,  214. 

In  this  State  mortgages  and  deeds  of 
trust  may  be  made  to  cover  growing  crops, 

114 


or  crops  to  be  grown  within  fifteen  months 
from  the  making  of  such  mortgage  or  deed, 
which  are  valid  upon  the  interest  of  the 
mortgagor  or  grantor  in  such  crop,  but 
ai;e  subject  to  any  lien  in  favor  of  the 
landlord  for  the  rent  of  the  property. 
Such  mortgages  must  be  recorded  in  a 
separate  book,  entitled  a  chattel  deed  book. 
Laws  1876,  pp.  100,  113. 

In  Arkansas,  mortgages  may  be  made 
of  crops  already  planted,  or  to  be  planted, 
and  are  binding  upon  such  crops  and  their 
products.  And  a  laborer  may  mortgage 
his  interest  in  a  crop  for  supplies  furnished 
him.     Acts  1875,  p.  230. 

4  McGee  v.  Fitzer,  37  Tex.  27. 

5  Grimes  v.  Rose,  24  Mich.  416. 

6  Butt  V.  Ellett,  19  Wall.  544;  Apper- 
son  V.  Moore,  30  Ark.  56;  Lehman  v. 
Marshall,  47  Ala.  363. 

"  Duke  V.  Strickland,  43  Ind.  494. 

8  Lehman  v.  Marshall,  47  Ala.  363; 
Adams  v.  Horton,  5  lb.  740  ;  Robinson  v. 
Mauldin,  11  Ala.  977. 


ACCESSIONS    TO   THE   MORTGAGED   PROPERTY.  [§  152. 

legal  title. ^  If  the  crop  be  severed  and  sold  without  the  consent 
of  the  mortgagee,  he  may  recover  the  value  of  it  from  a  purchaser, 
although  he  has  purchased  it  in  the  usual  course  of  trade,  and 
without  actual  notice.  The  record  is  constructive  notice.  The 
removal  of  the  crop  is  not  such  a  change  in  the  property  as  will 
divest  the  title  of  the  mortgagee.^ 

152.  A  mortgage  by  a  railroad  company  specifically  cover- 
ing after  acquired  property  is  binding  in  equity  upon  real  estate 
and  personal  property  afterwards  purchased  for  the  use  of  the 
road,  as  against  the  mortgagors  and  all  persons  claiming  under 
them,  except  purchasers  for  value  and  without  notice ;  and  espe- 
cially will  it  bind  such  property,  as  against  claimants  under  a 
junior  mortgage,  which  by  its  terms  is  subject  to  the  prior  mort- 
gage.^ "  Whenever  a  mortgage  is  made  by  a  railroad  company 
to  secure  bonds,  and  the  mortgage  declares  that  it  shall  include  all 
present  and  after  acquired  property,  as  soon  as  the  property  is 
acquired  the  mortgage  operates  upon  it.  In  other  words,  it  seizes 
the  property  or  operates  on  it  by  way  of  estoppel,  as  soon  as  it 
comes  into  existence  and  is  in  possession  of  the  mortgagor  ;  and 
the  mortgagees,  under  such  circumstances,  have  a  prior  equity  to 
the  claims  of  creditors  obtaining  judgments  and  executions  after 
the  property  is  thus  acquired  and  placed  in  possession  of  the  mort- 
gagor." * 

Such  is  the  settled  law  of  the  federal  courts  ;  °  and  generally  of 
the  state  courts  as  well.^  The  rule  is  applied  equally  to  real 
estate  and  personal  projoerty  ;  to  mortgages  by  individuals  as  "well 
as  those  made  by  corporations.'^ 

1  Mauldin  v.  Armistead,  14  Ala.  702;  Y.)  45;  Seymour ;;.  Canandaigiia,  &c.  R. 
18  Ala.  500.  Co.  25  lb.  284;  Benjamin  r.  Elmira,  &c. 

2  Duke  V.  Strickland,  43  Ind.  494.  E.  Co.  49  lb.  441 ;  S.  C.  54  N.  Y.  675; 

3  Stevens  v.  Watson,  4  Abb.  (N.  Y.)  Sillers  v.  Lester,  48  Miss.  513  ;  Howe  v. 
App.  Dec.  302.  Freeman,  14  Gray  (Mass.),  566;  Coopers 

*  Per  Drummond,  J.,  in  Scott  v.  Clin-  v.  Wolf,  15  Ohio  St.  523  ;  Phillips  v.  Wins- 
ton &  Springfield  R,  R.  Co.  8  Chicago  Le-  low,  18  B.  Mon.  (Ky.)  431  ;  Morrill  v. 
gal  New.s,  210.  Noyes,    56   Me.   458;    Phila.    &c.    Co.    v. 

5  Pennock  v.  Coe,  23  How.  117;  Gal-  Woelpper,  64  Pa.  St.  366. 

veston  R.  Co.  i'.  Cowdrey,  11  Wall.  481;  "  Holroyd  v.  Marshall,  10   H.  L.  Cas. 

Dunham   v.   Railway   Co.  1    Wall.    254;  191,  overruling  c?ic?« w  of  Baron  Parke  in 

Mitchell  V.  Wiuslow,  2  Story,  630.  Mogg  v.  Baker,  3   M.  &  W.  195.     The 

6  Pierce  v.  Mil.  R.  Co.  24  Wis.  551  ;  latter  case  was  followed  by  the  Supreme 
Hoyle  w.  Plattsburgh  R.  Co.  51  Barb.  (N.  Court    of   Massachusetts    in    Moody    v. 

115 


§§  153,  154.]      WHAT   MAY    BE   THE   SUBJECT   OF  A   MORTGAGE. 

153.  Rule  as  to  after  acquired  property.  —  "  It  seems  to  me," 
says  Judge  Story, ^  "  a  clear  result  of  all  the  authorities,  that 
wherever  the  parties  by  their  contract  intend  to  create  a  positive 
lien  or  charge,  either  upon  real  or  upon  personal  property, 
whether  then  owned  by  the  assignor  or  contractor  or  not,  or  if 
personal  property,  whether  it  is  then  in  esse  or  not,  it  attaches  in 
equity  as  a  lien  or  charge  upon  the  particular  property,  as  soon  as 
the  assignor  or  contractor  acquires  a  title  thereto,  against  the  lat- 
ter, and  all  persons  asserting  a  claim  thereto  under  him,  either 
voluntarily,  or  with  notice,  or  in  bankruptcy." 

The  chief  question,  therefore,  is,  whether  the  parties  to  the  mort- 
gage intended  that  the  after  acquired  property,  which  is  in  any 
case  the  subject  of  litigation,  should  be  subject  to  the  lien  of  the 
mortgage ;  and  it  will  be  noticed  that  in  the  recent  cases  the  con- 
tention is  generally  upon  this  question. 


154.  Applied  to  railroad  companies.  —  A  mortgage  which  by 


Wright,  13  Met.  17,  holding  that  prop- 
erty not  iu  existence  at  the  time  of  mak- 
ing the  mortgage  is  incapable  of  being 
conveyed  by  it. 

In  the  District  Court  for  Massachusetts 
the  doctrine  of  the  state  courts  was  dis- 
sented from  in  the  recent  case  of  Brett  v. 
Carter,  2  Lowell,  4.58,  where  it  was  held 
that  a  mortgage  of  after  acquired  chat- 
tels is  valid  against  the  assignee  in  bank- 
ruptcy of  the  mortgagor.  See  same  case 
in  3  Central  Law  Journal,  286,  and  an 
article  upon  it  in  same  volume,  p.  359. 
See,  also,  in  same  volume,  p.  608,  de- 
cision of  Judge  Clifford,  in  the  case 
of  Barnard  v.  Norwich  &  Worcester  11. 
Co.,  before  the  Circuit  Court  of  the 
United  States,  reported  also  in  14  N.  B. 
K.  469. 

In  Brett  v.  Carter,  supra,  Judge  Low- 
ell says :  "  I  suppose  that  the  federal 
courts,  in  all  matters  of  the  title  to  prop- 
erty, whether  real  or  personal,  when  there 
is  no  question  of  commercial  or  maritime 
or  general  law,  and  none  of  the  conflict 
of  laws,  are  as  much  bound  in  equity  as 
at  common  law  by  the  jurisprudence  of 
the  state  in  which  they  sit ;  or,  in  other 
words,  I  understand  that  the  thirty-fourth 

116 


section  of  the  judiciary  act,  making  the 
law  of  the  state  the  rule  in  actions  at  com- 
mon law,  is  declaratory  only,  and  that  on 
both  sides  of  this  court  I  am  bound  to 
foljow  the  law  of  Massachusetts  in  local 
questions,  and  the  general  law  in  general 
questions."  .... 

"  Considering  the  decision  by  Judge 
Story  in  this  circuit,  and  the  reasons 
given  by  the  court  of  Massachusetts  for 
not  following  it,  and  the  entire  consistency 
of  ail  recent  decisions  with  Judge  Story's 
views,  and  the  disappearance  of  Baron 
Parke's  dictum,  I  am  not  prepared  to  say, 
that,  if  the  Supreme  Judicial  Court  were 
now  asked  to  review  their  decision  in 
Moody  V.  Wright,  it  is  at  all  certain  they 
would  not  reverse  it;  and  under  the  cir- 
cumstances I  do  not  feel  bound  to  hold 
that  that  case  furnishes  a  settled  rule  of 
property  which  I  must  follow.  So  far 
from  that,  I  believe  that  the  law  of  Massa- 
chusetts in  equity  is,  that  a  mortgage  of 
after  acquired  chattels  is  valid." 

1  Mitchell  V.   Winslow,   2    Story,    630," 
644,  where  the  cases  are  reviewed.     And 
see,  also,   Christy   v.  Dana,  34   Cal.  548 ; 
Amonett  v.  Amis,  16  La.  Ann.  225. 


ACCESSIONS   TO   THE   MORTGAGED  PROPERTY.  [§  155. 

its  terms  covers  property  which  a  raih'oad  company  may  after- 
wards acquire,  though  given  before  any  part  of  the  road  is  built, 
covers  after  acquired  property  contemphited  by  the  mortgage.^  It 
attaches  to  the  property  as  it  comes  into  existence.  As  against 
the  raih-oad  company  and  its  privies,  the  after  acquired  property 
feeds  the  estoppel  created  by  the  deed.  Even  against  a  contractor 
who  has  at  his  own  expense  finished  a  railroad  under  contract  that 
he  shall  keep  possession  until  he  has  been  paid,  a  mortgage  in  such 
terms  will  pass  the  road  afterwards  built  and  acquired.^ 

A  mortgage  of  its  line  of  road,  its  tolls  and  revenues,  covers  all 
the  rolling  stock  and  fixtures,  whether  movable  or  immovable,  es- 
sential to  the  production  of  tolls  and  revenues.^  A  mortgage  of 
tolls  and  revenues  conveys  only  the  net  income  of  the  road,  after 
payment  of  all  expenses.* 

A  mortgage  by  a  railroad  company  of  "  all  the  present  and 
future  to  be  acquired  property  of  the  company,  including  the  right 
of  way  and  land  occupied,  and  all  rails,  and  other  materials  used 
therein  or  procured  therefor,"  includes  the  rolling  stock  of  the 
road.^  A  mortgage  on  a  road  with  its  engines,  depots,  and  shops 
then  owned  by  the  company,  or  which  they  might  thereafter  ac- 
quire, "with  the  superstructure,  rails,  and  other  materials  used 
thereon,"  is  construed  to  embrace  wood  provided  for  the  use  of 
the  road  from  time  to  tinie.^ 

155.  Suggestion  that  after  acquired  property  of  a  railway 
corporation  is  an  incident  to  the  franchise.  —  It  has  been  sug- 
gested that  when  a  mortgage  is  made  to  cover  the  franchise  of  a 
corporation,  property  after  acquired  by  it  will  pass  by  it  as  an  in- 
cident to  the  franchise,  and  as  an  accession  to  the  subject  of  the 
mortgage.'^ 

The  suggestion  that  a  mortgage  by  a  railroad  company  made  in 

1  Morris  Canal  Company  case,  3  Green's     Biss.  35  ;    and  see,  also,  Hoyle  v.  Platts- 
Ch.  402  ;  Galveston'R.  R.  Co.  v.  Cowdrey,    burgh  R.  Co.  51  Barb.  (N.  Y.)  45. 

11  Wall.  481.  «  Coe  t\  McBrown,  22  Ind.  252.     See 

2  Dunham  v.  Railwivy  Co.  1  Wall.  2.54.  Bath  v.  Miller,  53  Me.  308. 

3  State  V.  Northern,  &c.  R.  Co.  IS  Md.  '  Stevens  v.  Buffiilo,  Corning  &  N.  Y. 
193.  R.  Co.  45  How.  (N.  Y.)  Pr.  104.     The  de- 

*  Parkhurst  v.  Northern,  &c.  R.  Co.  19     cision  was  not,  however,  based  upon  this 

Md.  472.  proposition.     See  Rowan  v.  Sharp's  Ri6e 

6  Pullan  V.   Cincinnati,   &c.   R.  Co.  4    Co.  29   Conn.  282;  Chew  v.  Barnet,   11 

S.  &  R.  (Pa.)  389. 

117 


§  156.]         WHAT   MAY    BE   THE   SUBJECT   OF   A   MORTGAGE. 

pursuance  of  its  charter,  or  of  a  law  authorizing  it,  attaches  to  sub- 
sequently acquired  property,  for  the  reason  that  the  franchise  by 
virtue  of  which  the  property  was  acquired  itself  passed  by  the 
mortgage,  was  noticed  by  the  Supreme  Court  of  Wisconsin.  The 
court  however,  while  questioning  the  reason  so  assigned,  held  that 
when  a  mortgage  by  express  terms  covers  lands  that  may  be  sub- 
sequently acquired  for  the  uses  of  the  company,  the  lien  will  at- 
tach to  such  lands  the  moment  the  company  acquires  an  interest 
in  them,  although  this  interest  be  only  a  contract  of  purchase.  The 
mortgagee  may  compel  a  conveyance  under  such  a  contract,  and 
the  company  cannot  impair  the  lien  b}'^  a  sale  without  the  mort- 
gagee's consent.^ 

But  in  a  case  before  the  Court  of  Appeals  of  Kentucky  the  power 
of  a  corporation  to  pass  by  its  mortgage  after  acquired  property 
was  placed  altogether  upon  this  ground,  the  court  saying  that  the 
power  to  pledge  the  franchises  and  rights  of  the  corporation  im- 
plies, as  incident  thereto,  the  power  to  pledge  everything  that  may 
be  necessary  to  the  enjoyment  of  the  franchise,  and  upon  which 
its  real  value  depends.  When  a  railroad  mortgage  is  made  which 
is  to  continue  for  many  years,  new  cars  and  engines  and  materials 
of  different  kinds  will  become  necessary  from  time  to  time,  and 
the  road  would  be  of  little  value  without  them ;  therefore  if  in- 
cluded in  a  mortgage  they  are  effectually  covered  by  it.^ 

156.  A  mortgage  by  a  railway  company  does  not  by  impli- 
cation cover  property  not  essential  to  its  business.  —  But  a 
mortgage  by  a  railroad  company  or  other  corporation  will  not 
cover  property  belonging  to  it,  which  is  not  essential  to  its  busi- 
ness and  is  not  specifically  described  by  any  of  the  terms  used  in 
the  mortgage.  Thus  a  mortgage  by  a  railroad  company  of  its 
real  estate,  road,  bridges,  ferries,  locomotives,  engines,  cars,  and 
all  other  personal  property  belonging  to  it,  does  not  include  canal 
boats  run  in  connection  with  the  road  beyond  its  terminus.^  Town 
lots,  held  by  a  railroad  compan}^  do  not  pass  by  a  sheriff's  sale, 
under  a  mortgage  of  the  road,  "  with  its  corporate  privileges  and 
appurtenances,"  when  they  are  not  directly  appurtenant  to  the 
railroad  and  indispensably  necessary  to  the  enjojanent  of  its  fran- 

1  Fiu-mers'  Loan  &  Trust  Co.  v.  Fisher,  -  Phillips  v.  Winslow,  18  B.  Mon.  (Ky.) 

17  Wis.  114;  Hill  v.  La  Crosse  &  Milw.  445. 

R.  Co.  11  Wis.  214.  3  Parish  v.  Wheeler,  22  N.  Y.  4  94. 
118 


ACCESSIONS   TO   THE  MORTGAGED   PROPERTY.  [§  157. 

chises.^  A  mortgage  of  the  stock,  materials,  and  every  other  kind 
of  personal  property  which  shall  be  used  for  operating  a  railroad, 
does  not  profess  to  cover  railroad  chairs  afterwards  bought  by  the 
company,  but  which  were  never  used  by  it.^  A  mortgage  which 
does  not  purport  to  cover  materials  subsequently  acquired  is  not 
made  valid  as  to  such  materials  from  any  consideration  of  the 
nature  and  object  of  the  mortgage,  as  for  instance  that  it  was 
made  for  the  purpose  of  raising  money  to  complete  the  road.^ 

A  mortgage  by  a  railroad  company  upon  its  road  and  real  estate 
then  owned  by  it,  or  which  it  might  afterwards  acquire,  may  be 
considered  an  equitable  mortgage  as  to  the  property  subsequently 
acquired  for  the  purposes  of  its  road,  and  is  >&  valid  lien  upon 
after  acquired  land  so  taken  and  used.*  Any  property  connected 
with  the  use  of  its  franchise,  whether  real  or  personal,  to  be  subse- 
quently acquired  may  be  effectually  mortgaged.-^  Upon  foreclos- 
ure of  such  a  mortgage,  the  property  and  riglits  of  the  corporation 
as  they  exist  at  the  time  of  the  foreclosure  pass  to  the  mortgagees 
or  to  the  purchasers.^ 

157.  On  the  principle  of  accession  it  has  been  held  that 
without  particular  mention  of  the  property  afterwards  acquired, 
a  mortgage  by  a  railroad  company  of  all  its  property  and  rights 
of  property  will  pass  property  afterwards  acquired  and  essential 
to  its  use,  even  as  against  other  creditors  who  claim  by  later  mort- 
gages. Such  a  mortgage  is  regarded  as  in  substance  a  convey- 
ance of  the  road  and  franchise  as  an  entire  thing,  and  the  sub- 
sequently acquired  property  as  becoming  a  part  of  it  by  accession, 
and  as  incident  to  the  franchise  ;  and  therefore  a  cargo  of  rail- 
road iron,  after  it  is  delivered  to  the  railroad  company,  becomes 
subject  to  the  lien  of  such  a  mortgage.'  And  so  a  mortgage 
intended  to  cover  the  whole  property  of  the  road  is  held  to 
pass  the  rolling  stock,  though  not  expressly  named.^ 

1  Shamokin  Valley  R.     Co.   v.   Liver-  andaigua  R.  R.  Co.  49  Barb.  441  ;  S.  C. 
more,  47  Ta.  St.  465.     See  Dinsmore  v.  54  N.  Y.  675  ;  Seymour  v.  Canandaigua 
Racine,  &c.  R.  Co.    12    Wis.   649,  as  to  &  Niagara  Falls  R.  R.  Co.  25  Barb.  284. 
mortgage  covering  a  lot  of  woodland  ly-        &  Coc  v.  Peacock,  14  OIiIq  St.  187. 

ing  seven  miles  from  the  road  track.  ^  Miller  v.  Rutland,  &c.  R.  Co.  36  Vt. 

2  Farmers'  Loan,  &c.  Co.  v.  Commer-     452. 

cial  Bank,  11  Wis.  207.  7  Pierce  v.  Emery,  32  N.  H.  484. 

3  Farmers'  Loan,  &c.  Co.  v.  Commercial  *  Hoyle  v.  Plattsburgh,  &c.  51  Barb. 
Bank,  15  Wis.  424.  (N.  Y.)  45. 

*  Benjamin  v.  Eiinira,  Jefferson  &  Can- 

119 


§§  158,  159.]      WHAT   MAY   BE   THE   SUBJECT   OF   A   MORTGAGE. 

It  has  been  held,  however,  that  the  lien  of  the  mortgage  can- 
not be  extended,  on  this  principle  of  accession,  to  cover  personal 
property  never  actually  annexed  to  the  realty  or  used  upon  it : 
as  for  instance  to  railroad  chairs  purchased  for  the  road,  but  not 
actually  used  in  the  construction  or  repair  of  it.^ 

158.  The  mortgage  is  subject  to  any  liens  there  may  be 
upon  the  property  -when  acquired.  —  A  mortgage  intended  to 
cover  after  acquired  property  attaches  to  the  property  in  the  con- 
dition in  which  it  comes  into  the  mortgagor's  hands.  If  it  be 
at  that  time  already  subject  to  mortgages  or  other  liens,  the  gen- 
eral mortgage  does  not  displace  them,  though  they  may  be  junior 
to  it  in  point  of  time.  "  It  only  attaches  to  such  interest  as  the 
mortgagor  acquires  ;  and  if  he  purchase  property  and  give  a 
mortgage  for  the  purchase  money,  the  deed  which  he  receives, 
and  the  mortgage  which  he  gives,  are  regarded  as  one  transac- 
tion, and  no  general  lien  impending  over  him,  whether  in  the 
shape  of  a  general  mortgage,  or  judgment,  or  recognizance,  can 
displace  such  mortgage  for  purchase  money.  And  in  such  cases 
a  failure  to  register  the  mortgage  for  purchase  money  makes  no 
difference.  It  does  not  come  within  the  reason  of  the  registry 
laws.  These  laws  are  intended  for  the  protection  of  subsequent, 
not  prior,  purchasers  and  creditors."  ^ 

A  mortgage  by  a  railroad  company  covering  all  future  ac- 
quired property  attaches  only  to  such  interest  therein  as  the 
company  acquires,  subject  to  any  lien  under  which  it  comes  into 
the  company's  possession.^ 

159.  Whether  a  covenant  of  a  third  person  will  pass  by 
mortgage.  —  Whether  a  covenant  of  the  purchaser  of  a  portion  of 
a  railroad  to  pay  a  portion  of  the  mortgage  debt,  and  in  case  of 
default  allowing  the  company  to  reenter  upon  the  premises  and 
sell  them  under  foreclosure,  would  pass  by  a  subsequent  mort- 
gage given  by  the  company,  conveying  the  road  with  its  franchises 
and  all  "  causes  of  action,  demands,  and  choses  of  action,  of  what- 
ever nature,"  is  questionable.    The  fact  that  the  subsequent  mort- 

1  Farmers'  Loan  &  Trust  Co.  v.  Com-  2  United  States  v.  New  Orleans  Rail- 
mercial  Bank,  11  Wis.  207 ;  S.  C.  15  "Wis.  road,  12  Wall.  362-365,  per  Bradley,  J. 
424  ;  Hill  V.  La  Crosse  &  Milw.  R.  R.  Co.  ^  United  States  v.  N.  0.  Railroad,  sti- 
ll Wis.  214.  pra. 
120 


ACCESSIONS   TO   THE  MORTGAGED   PROPERTY.      [§§  160,  161. 

gage  was  expressly  made  subject  to  the  prior  mortgage  for  the 
payment  of  a  portion  of  which  such  covenants  were  given  would 
probably  prevent  their  passing."  ^ 

A  right  of  way  for  a  railroad  may  be  pledged  as  security  for  a 
loan,  and  upon  default  may  be  sold  and  transferred  so  as  to  vest 
the  easement  in  the  purchaser.^ 

160.  A  mortgage  may  be  made  of  the  future  net  earn- 
ings of  a  railroad  company  to  secure  the  payment  of  interest 
upon  its  construction  bonds. ^  But  a  mortgage  which  does  not  by 
its  terms  grant  the  income  or  earnings  of  the  road  gives  the 
mortgagee  no  right  to  them.* 

161.  The  mortgage  does  not  cover  the  corporate  existence. 
A  mortgage  by  a  railroad  company  of  its  road  and  franchise,  as 
a  security  for  debt,  is  held  not  to  convey  its  corporate  existence 
or  its  general  corporate  powers,  but  only  the  franchise  necessary 
to  make  the  conveyance  beneficial  to  the  grantees,  and  to  enable 
them  to  maintain  and  manage  the  road,  and  receive  the  profits 
to  their  own  use.^ 

1  Milwaukee  &Miiin.  E.  R.  Co.  v.  Mil-        «  Jessup  v.  Bridge,  11  Iowa,  572. 
waukee  &  West.  R.  R.  Co.  20  Wis.  174.  *  Farmers'  Loan  &  Trust  Co.  v.  Gary, 

2  Junction  R.  Co.  v.  Ruggles,  7  Ohio     13  Wis.  110. 

St.  1.  5  Eldridge  v.  Smith,  34  Vt.  484. 

121 


CHAPTER  V. 

EQUITABLE  MOETGAGES. 

162.  Introductory.  —  It  has  been  noticed  that  a  conveyance, 
accompanied  by  a  condition  contained  either  in  the  deed  itself  or 
in  a  separate  instrument  executed  at  the  same  time,  constitutes  a 
legal  mortgage,  or  a  mortgage  at  common  law.  In  addition  to 
these  formal  instruments  which  are  properl}^  entitled  to  the  desig- 
nation of  mortgages,  deeds  and  contracts  which  are  wanting  in 
one  or  both  of  these  characteristics  of  a  common  law  mortgage 
are  often  used  by  parties  for  the  purpose  of  pledging  real  prop- 
erty, or  some  interest  in  it,  as  security  for  a  debt  or  obligation, 
and  with  the  intention  that  they  shall  have  effect  as  mortgages. 
Equity  comes  to  the  aid  of  the  parties  in  such  cases,  and  gives 
effect  to  their  intentions.  Mortgages  of  this  kind  are  therefore 
called  equitable  mortgages. 

There  are  many  kinds  of  equitable  mortgages  —  as  many  as 
there  are  varieties  of  ways  in  which  parties  may  contract  for  secu- 
rity by  pledging  some  interest  in  lands.  Whatever  the  form  of 
the  contract  may  be,  if  it  is  intended  thereby  to  create  a  security, 
it  is  an  equitable  mortgage.  It  is  not  even  necessary  that  the 
contract  should  be  in  express  terms  a  securit}^ ;  for  equity  will 
often  imply  this  from  the  nature  of  the  transactions  between  the 
parties.  For  instance,  a  contract  for  security  is,  in  England  and 
in  some  States  of  America,  implied  from  a  deposit  of  title  deeds. 

It  has  been  noticed  in  the  preceding  chapter,  that  rights  and 
interests  in  realty  which  are  only  equitable  are  often  the  subject 
of  mortgage  ;  that  in  equity  formal  mortgages  are  often  made  to 
embrace  property,  which  at  common  law  would  not  be  covered 
at  all ;  as  for  instance  property  acquired  after  the  execution  of 
the  mortgage.  But  the  term  equitable  mortgage  is  used  more 
properly  with  reference  solely  to  the  kind  of  instrument  or  con- 
tract by  which  equity  establishes  a  lien.  It  is  the  equitable  form 
122 


BY   AGREEMENTS   AND  INFORMAL  MORTGAGES.  [§  163. 

of  the  transaction,  rather  than  the  equitable  natui-e  of  the  prop- 
ertjs  to  which  this  chapter  has  reference. 

There  are  some  kinds  of  equitable  mortgage  so  common  and  so 
important  that  they  will  be  treated  of  at  length  farther  on  ;  as 
for  instance  absolute  conveyances  without  any  defeasance  except 
by  parol,  and  liens  of  vendors  under  written  contracts  or  reserva- 
tions. In  this  chapter,  therefore,  the  less  important  transac- 
tions which  in  equity  are  recognized  as  creating  securities  will  be 
treated  of. 

1.  By  Agreements  and  Informal  Mortgages. 

163.  An  agreement  to  give  a  mortgage,  not  objectionable 
for  want  of  consideration,  is  treated  in  equity  as  a  mortgage,  upon 
the  principle  that  equity  will  treat  that  as  done  which  by  agree- 
ment is  to  be  done.  This  doctrine  has  been  asserted  frequently, 
both  in  this  country  and  in  England. ^  It  is  of  frequent  applica- 
tion under  the  bankrupt  laws,  where  it  operates  to  make  valid  a 
mortgage  given  to  a  creditor,  shortly  before  the  filing  of  a  peti- 
tion in  bankruptcy  by  the  mortgagor,  when  this  is  done  in  pur- 
suance of  an  agreement  made  at  a  time  when  the  giving  of  the 
mortgage  would  not  have  been  a  fraudulent  preference. ^ 

An  agreement  to  make  a  conveyance  of  land,  when  intended  as 
security  for  a  debt,  is  in  the  same  manner  a  mortgage.  But  all 
such  agreements  to  give  mortgages  or  other  conveyances  by  way 
of  security  are  ineffectual  when  no  particular  property  is  specified 
on  which  the  security  is  to  be  given.  An  agreement  to  give  a 
mortgage  on  sufficient  property  is  not  effectual.^  Such  agreement 
can  of  course  bind  only  the  maker  of  it  and  his  heirs,  and  per- 
sons having  notice.  It  is  not  of  any  force  as  against  his  subse- 
quent judgment  creditors.^ 

The  meaning  of  the  maxim,  that  equity  looks  upon  things 
agreed  to  be  done  as  actually  performed,  is  that  equitj'  will  treat 
the  matter,  as  to  collateral    consequences  and  incidents,  in  the 

1  Russel  V.  Russel,  1  Bio.  C.  C.  269 ;  647  ;    Adams  v.  Johnson,  41   Miss.   2.')8. 

Cotterell  v.  Lonf,',  20  Ohio,  464;    Chase  See,  however,  Humphreys  r.  Snyder,  Mor- 

V.  Peck,  21   N.   Y.  581 ;   In  re   Howe,  1  ris  (Iowa),  263. 

Paige  (N.  Y.),   125;  Morrow  v.  Turney,  -  Burdick  v.  Jackson,  7  Hun   (N.  Y.), 

35  Ala.  131  ;  Bank  v.  Carpenter,  7  Ohio,  488. 

21 ;  Daggett  v.  Kankin,  31  Cal.  321  ;  De-  ^  Adams  v.  Johnson,  41  Miss.  258. 

laire  v.   Keenan,  3   Desau.    (S.   C.)   74;  *  Price  v.  Cutts,  29  Ga.  142  ;  Racouil- 

Petrie  v.   Wright,   6   Sm.   &  M.  (Miss.)  lat  v.  Sansevain,  32  Cal.  376. 

123 


§§  164-166.]  EQUITABLE   MORTGAGES. 

same  manner  as  if  the  final  acts  contemplated  by  tlie  parties  had 
been  executed  exactly  as  they  ought  to  have  been.^ 

164.  It  is  not  even  necessary  that  the  agreement  should  in 
all  cases  be  in  writing.  —  Although  a  parol  agreement  in  respect 
to  lands  while  it  remains  altogether  executory  is  not  en  forcible, 
yet  when  there  has  been  a  part  performance  of  it,  it  cannot  in 
equity  be  avoided.  When  such  parol  agreement  has  been  per- 
formed by  a  delivery  of  a  formal  mortgage,  all  objection  to  the 
validity  of  the  agreement  is  removed,  and  it  becomes  as  effectual 
for  all  purposes  as  if  it  had  been  reduced  to  writing  originally. 
In  this  way  a  mortgage  made  a  few  days  before  the  bankruptcy  of 
the  mortgagor,  but  in  pursuance  of  a  parol  agreement  made  fifteen 
months  before,  and  based  upon  a  good  consideration,  is  good 
against  the  assignee  in  bankruptcy,  and  not  open  to  the  objection 
that  it  is  void  as  a  fraudulent  preference.^ 

165.  Upon  this  principle,  the  entry  of  an  agreement  by  a 
corporation  upon  its  records,  that  a  certain  bond  for  title  should 
be  pledged  to  certain  of  its  members  as  security  for  liabilities, 
which  they  were  about  to  incur  for  the  company,  was  held  to  be 
an  equitable  mortgage  ;  and  although  a  deed  of  trust  was  after- 
wards made  in  conformity  with  the  resolution,  yet  these  members 
having  acted  upon  the  faith  of  it  before  the  deed  of  trust  was 
made  were  held  to  be  entitled  to  the  security  as  from  that  time, 
and  the  deed  of  trust  was  regarded  only  as  a  confirmation  of  the 
agreement,  and  as  having  relation  to  the  resolution. ^ 

The  maker  of  two  notes  gave  an  instrument  to  his  sureties  on 
the  notes  reciting  that  they  were  given  for  the  purchase  of  land, 
and  providing,  "  In  case  I  fail  to  pay  said  notes,  I  do  bind  myself, 
my  heirs,  &c.,  to  convey  to  said  sureties  the  aforesaid  land."  It 
was  held  that  upon  the  failure  of  the  principal  to  pay  the  notes  the 
sureties  were  entitled  not  to  an  absolute  conveyance  but  to  a  mort- 
gage.* 

166.  An  instrument  which  does  not  transfer  the  legal  es- 

Daggett  V.  Rankin,  31  Cal.  321,  326,  8  Miller  v.  Moore,  3  Jones  (N.  C.)  Eq. 

per  Currey,  C.  J.  431. 

2  Burdick  v.  Jackson,  7  Hun  (N.  Y.),  *  Courtney  v.  Scott,  6  Litt.  (Ky.)  457. 
488. 

124 


BY  AGREEMENTS  AND  INFORMAL  MORTGAGES.     [§  166. 

tate  may  yet  operate  as  an  equitable  transfer  of  it  in  the  nature 
of  a  mortgage.  Such  was  held  to  be  the  effect  of  an  agreement 
under  seal  made  by  one  to  whom  land  was  conveyed  in  consider- 
ation that  he  should  support  and  maintain  the  grantor,  whereby 
the  produce  of  the  land  was  pledged  for  that  purpose,  and  if  that 
should  prove  insufficient,  the  entire  fee  was  appropriated. ^  Such 
too  is  a  similar  instrument,  in  which  the  signer  agrees  to  maintain 
his  father  and  mother  during  their  natural  lives,  and  as  security 
for  the  fulfilment  of  the  agreement  conveys  and  grants  to  them 
"  each  and  severally  a  life  lien  or  dower  or  lien  of  maintenance  for 
life  "  in  real  estate.^  The  words,  "  we  mortgage  the  property,"  ac- 
companied by  a  provision  for  the  sale  of  it  upon  non-payment  of 
money  thus  secured,  have  been  held  sufficient  to  create  a  mortgage.^ 

An  instrument  whereby  a  corporation  "  pledges  the  real  and 
personal  estate  of  said  company,"  for  the  fulfilment  of  a  contract, 
may  be  enforced  as  a  mortgage  against  the  company,  and  all  per- 
sons claiming  under  it  with  notice  ;  and  is  not  rendered  invalid  for 
the  reason  that  the  property  of  the  company  is  pledged  without 
specification,  or  that  the  amount  secured  is  not  stated,  or  the  time 
of  redemption  fixed.* 

An  instrument  which  recites  that  the  maker  of  it  had  employed 
certain  persons  as  counsel  to  prosecute  a  claim  to  certain  land,  and 
promises  the  payment  of  a  certain  sum  "  at  the  end  of  the  litiga- 
tion out  of  the  land,"  is  a  mortgage.^  It  indicates  the  creation  of 
a  lien,  and  specifies  the  debt  intended  to  be  secured  and  the  prop- 
erty upon  which  it  is  to  take  effect.  And  so  an  agreement  in  a 
lease,  that  the  lessor  "  is  to  have  a  lien  "  upon  certain  property  for 
the  faithful  performance  of  the  lessee's  obligation  to  pay  rent,  is 
in  effect  a  mortgage.^ 

A  covenant  by  a  debtor,  to  execute  to  his  creditor  a  mortgage 
upon  the  debtor's  share  under  his  father's  will,  whenever  a  divi- 
sion should  have  been  made,  was  held  to  be  a  mortgage.^  So  was 
a  provision  in  a  deed  that  the  grantee  shall  pay  certain  legacies 
which  are  a  charge  upon  the  property  conveyed.^     So  also  an 

1  See  Chase  v.  Peck,  21  N.  Y.  581.  5  Jackson  v.  Carswell,  34  Ga.  279. 

2  Gilson  V.  Gilson,  2  Allen  (Mass.),  ^  Whiting  u.  Eichelberger,  16  Iowa,  422. 
115.  7  Lynch   v.   Utica   Ins.    Co.  18  Wend. 

8  De  Leon  v.  Higuera,  15  Cal.  483  ;  and     (N.  Y.)  236. 
see  Barroilhet  v.  Battelle,  7  Cal.  450.  ^  Stewart  v.  Hutchins,  6  Hill  (N.  Y.), 

*  Mobile  &  C.  P.  R.  Co.  v.  Talman,  15     143. 


Ala.  472, 


125 


§§  167,  168.]  EQUITABLE   MORTGAGES. 

agreement  not  under  seal  which  provided  that  the  purchase  money 
of  land  if  not  sold  by  the  purchaser  should  be  secured  by  the 
property,  and  if  sold,  then  paid  from  the  proceeds. ^ 

167.  A  written  agreement  that  attempts  to  appropriate 
specific  property  to  the  payment  of  a  debt,  and  gives  the  cred- 
itor possession  of  it  to  hold  till  the  debtor  shall  make  sale  of  the 
land  and  satisfy  the  debt  from  such  sale,  the  occupation  of  the 
land  and  the  doing  of  certain  work  to  offset  interest  on  the  debt, 
constitutes  an  equitable  mortgage  binding  upon  the  owner  of  the 
land,  and  upon  any  one  who  buys  of  him  with  notice  of  the 
agreement.^ 

An  agreement  on  the  back  of  a  note,  making  it  a  charge  upon 
particular  land,  is  an  equitable  mortgage.  In  this  way  an  agree- 
ment intended  to  operate  as  a  revival  of  a  mortgage  note  which 
had  been  paid  may  be  rendered  effectual*  although  ineffectual  to 
revive  the  mortgage  lien.^ 

An  agreement  by  the  equitable  owner  of  land,  that  the  holder 
of  the  legal  title  may  hold  it  as  security  for  the  payment  of  a 
sum  of  money  borrowed  by  the  former  of  a  third  person,  creates 
an  equitable  lien  upon  the  land  in  favor  of  the  lender.^ 

168.  Informal  mortgages.  —  A  mortgage,  or  trust  deed,  which 
cannot  be  enforced  by  a  sale  under  the  power  or  by  a  judgment 
of  foreclosure,  on  account  of  some  informality  requisite  to  a  com- 
plete mortgage  or  deed  of  trust,  will  nevertheless  be  regarded  as 
an  equitable  mortgage,  and  the  lien  will  be  enforced  by  special 
proceedings  in  equity.  The  attempt  to  create  a  security  in  legal 
form  upon  specific  property  having  failed,  effect  is  given  to  the 
intention  of  the  parties,  and  the  lien  enforced  as  an  equitable 
mortgage.  Any  agreement  between  the  parties  in  interest  that 
shows  an  intention  to  create  a  lien  may  be  in  equity  a  mort- 
gage.^ As  stated  by  Judge  Story ,^  "  If  a  transaction  resolve  it- 
self into  a  security,  whatever  may  be  its  form,  and  whatever 
name  the  parties  may  choose  to  give  it,  it  is  in  equity  a  mort- 
gage." 

Effect  has  been  given  in  this  way  to  a  deed  of  trust  in  which 

1  Racouillat  v.  Sansevain,  32  Cal.  376.  *  Chadwick  v.  Clapp,  69  111.  119. 

2  Blackburn  v.  Tweedie,  60  Mo.  505.  6  Daggett  v.  Eankin,  31  Cal.  321. 

8  Peckham  v.  Haddock,  36  111.  39.  6  pjagg  v.  Mann,  2  Sum.  533.  /. 

126 


BY   AGREEMENTS   AND   INFORMAL   MORTGAGES.       [§§  169,  170. 

the  name  of  the  trustee  was  accidentally  omitted  ;  ^  to  one  from 
which  a  seal  was  omitted  by  mistake  ;  ^  to  one  sealed  in  fact,  but 
not  expressed  to  be  sealed  ;  to  one  imperfectly  acknowledged,  or 
not  acknowledged  at  all ;  ^  or  not  witnessed  as  a  deed  of  real  es- 
tate is  required  to  be.^ 

169.  Mortgage  defectively  executed  in  name  of  agent.  — 
Upon  this  principle  a  mortgage  })urporting  to  be  the  mortgage 
of  a  corporation,  but  not  executed  in  its  name,  so  as  to  be  legally 
binding  upon  it,  is  held  to  be  binding  in  equity  if  it  appear  that 
the  officer  or  agent  had  authority  to  bind  it,  and  by  accident  or 
mistake  executed  it  in  his  own  name  instead  of  the  name  of  the 
company.  In  such  a  case,  before  the  Supreme  Court  of  Califor- 
nia,^ it  was  urged  that  the  defective  execution  of  the  mortgage  was 
caused  by  a  mistake  of  law,  and  that  therefore  the  defective  exe- 
cution could  not  be  aided.  In  answer  to  this  Mr.  Justice  Shaff- 
ter,  delivering  the  opinion  of  the  court,  replies,  that  where  there 
is  a  defective  execution  of  a  power,  it  is  a  matter  of  no  equitable 
moment  whether  the  error  came  of  a  mistake  of  law  or  mistake 
of  fact.  It  is  enough  that  the  power  existed,  and  that  there  was 
an  attempt  to  act  under  it.  The  relief  is  not  so  much  by  way  of 
reforming  the  instrument  as  by  aiding  its  defective  execution  ; 
which  aid  is  administered  through  or  by  the  application  of  well 
settled  maxims  of  the  law  ;  or,  as  in  the  class  of  cases  to  which 
this  belongs,  the  instrument  defectively  executed  as  a  deed  is 
considered  as  properly  executed  as  a  contract  for  a  deed ;  and 
therefore  as  requiring  neither  reformation  nor  aid,  but  as  ripe 
for  enforcement,  according  to  the  methods  peculiar  to  courts  of 
equity. 

170.  Mortgage  by  implied  trust.  —  It  would  seem  that  if  a 
mortgage  be  made  to  two  persons  conditioned  to  secure  the  pay- 
ment of  a  debt  to  one  of  them  only,  the  legal  estate  would  vest  in 
them  as  tenants  in  common  ;  but  tlie  one  having  no  claim  secured 

1  McQuie  V.  Peay,  58  Mo.  56  ;  Burn-  ^  Jones  v.  Brcwington,  58  Mo.  210. 
side  V.  Wayman,  49  Mo.  356.  *  Black  v.  Grejjg,  58  Mo.  565. 

2  McClur<,r  V.  Phillips,  49  Mo.  315;  57  ^  Abbott  v.  Godfrey,   1  Mann.  (Mich.) 
Mo.  214;  Dunn  v.    Kaley,   58   Mo.  134;  198;  Lake  y.  Doud,  10  Ohio,  415. 
Han-ingtou  v.  Fortner,  58  Mo.  468 ;  Gill  "  Love  v.   Sierra  Nevada,    &c.  Mining 
V.  Clark,  54  Mo.  415.  Co.  32  Cal.  639. 

127 


§§  171,  172.]  EQUITABLE   MORTGAGES. 

would  be  trustee  to  the  extent  of  his  moiety,  and  hold  it  in  trust 
to  secure  the  debt  due  the  other.i 

In  like  manner  where  one  advances  money  to  pay  off  a  mort- 
gage, which  is  thereupon  assigned  for  his  protection  to  one  of  the 
owners  of  a  part  of  the  property,  it  is  a  trust  in  the  hands  of  the 
latter,  and  may  be  established,  as  against  all  parties  having  notice 
of  these  facts,  as  an  equitable  lien,  although  the  mortgage  has 
been  discharged  of  record.^ 

171.  An  assignment  of  rents  and  profits  of  land  as  security 
is  an  equitable  mortgage.  Such  an  assignment,  in  the  words  of 
Lord  Thurlow,  "  is  an  odd  way  of  conveying  ;  but  it  amounts  to 
an  equitable  lien,  and  would  entitle  the  assignee  to  come  into 
equity  and  insist  upon  a  mortgage."  ^ 

A  formal  mortgage  of  a  leasehold  estate  amounts  only  to  an 
assignment  of  the  rents  and  profits  for  the  whole  term,  in  states 
where  foreclosure  cannot  be  effected  by  a  sale,  but  only  by  a  strict 
foreclosure  or  a  proceeding  in  that  nature.* 

A  stipulation  in  a  lease,  that  the  building  erected  by  the  lessee 
"  is  mortgaged  as  security  "  for  rent,  is  a  good  mortgage.^  An 
assignment  of  a  lease  absolutely,  accompanied  with  a  bond  stating 
it  to  have  been  made  to  secure  the  payment  of  a  debt,  and  provid- 
ing for  a  reconveyance  upon  payment,  is  a  mortgage,^  in  the  same 
way  that  an  absolute  conveyance  in  fee  accompanied  by  such  a 
bond  is  a  mortgage. 

2.  By  Assignments  of  Contracts  of  Purchase. 

YJ^.  An  assignment  by  the  vendee  of  a  contract  of  sale  of 
land  as  security  for  a  loan  may  be  regarded  as  an  equitable  mort- 
gage.'^ The  rules  applicable  to  a  mortgage  of  real  property  gov- 
ern it  both  as  to  the  effect  of  it  and  the  mode  of  enforcing  it.^ 

Where  one  having  a  contract  for  the  purchase  of  land  agrees 
with  another  that  he  shall  pay  the  purchase  money  and  take  a 
deed  of  the  land  for  his  security  until  repaid,  the  arrangement 

1  Root  V.  Bancroft,  10  Met.  (Mass.)  44.        6  Jackson  v.  Green,  4  Johns.  (N.  Y.) 

2  King  V.  McVickar,  3  Sandf.  (N.  Y.)     186. 

Ch.  192.  7  Fitzhugh  v.  Smith,  62  III.  486. 

8  Willis,  ex  parte,  1  Ves.  Jun.  162.  »  Brockway  v.  Wells,  1   Paige  (N.  Y.), 

4  Hulett  V.  SouUard,  26  Vt.  295.  617. 

5  Barroilhet  v.  Battelle,  7  Cal.  450. 

128 


BY   ASSIGNMENTS   OF   CONTRACTS   OF   PURCHASE.         [§  173. 

amounts  to  a  mortgage  of  such  equitable  title. ^  In  like  manner 
if  the  owner  of  land  warrants  secure  a  debt  by  having  them  en- 
tered in  the  name  of  his  creditor,  such  entry  is  a  mortgage.^ 

A  mortgage  made  by  one  who  holds  only  a  bond  or  contract  of 
purchase  passes  only  the  title  he  has  in  the  premises  at  the  time, 
subject  to  be  enlarged  by  the  mortgagor's  acquiring  afterwards 
the  legal  title.  Such  a  mortgage  amounts  to  a  qualified  assign- 
ment of  the  bond  or  contract.  If  the  contract  and  mortgage  be 
executed  formally  so  that  they  may  be  recorded,  the  record  is 
notice  to  any  subsequent  purchaser  from  the  vendor  of  the  mort- 
gagee's right  to  purchase  the  property  under  the  contract,  if  the 
vendee  does  not  perform  the  condition  of  the  mortgage.^  The 
vendor  and  vendee  cannot  rescind  the  contract  as  against  such 
mortgagee  after  the  vendor  has  actual  notice  of  the  mortgage. 

173.  A  bond  for  a  conveyance  may  be  assigned  by  way  of 
mortgage.  —  If  the  assignee  subsequently  obtains  the  legal  title 
to  the  land  by  virtue  of  the  bond,  and  surrenders  that,  he  will  hold 
the  land  subject  to  the  right  of  his  assignor  to  redeem.^  Such  a 
bond  is  itself  sometimes  declared  to  be  in  equity  equivalent  to  a 
conveyance  of  the  property,  with  a  mortgage  back ;  so  that  the 
assignment  of  it  is  equivalent  to  the  assignment  of  a  mortgage.^ 

When  land  is  sold  on  credit,  and  a  bond  is  given  to  the  pur- 
chaser to  make  title  on  payment  of  the  purchase  money,  the  effect 
of  the  contract  is  to  create  a  mortgage,  the  same  as  if  the  vendor 
had  conveyed  the  land  by  an  absolute  deed  to  the  purchaser,  and 
taken  back  a  mortgage  to  secure  the  payment  of  the  purchase 
money.  The  lien  so  created  is  an  incumbrance  on  the  land,  not 
only  against  the  purchaser  and  his  heirs,  but  also  against  all  sub- 
sequent purchasers.^  It  is  said,  that  bonds  for  title  came  into 
common  use  through  the  inability  of  the  vendor,  under  the  public 

1  Fessler's  Appeal,  75  Pa.  St.  483 ;  Christy  v.  Dana,  34  Cal.  548  ;  Neligh  v. 
Purdy  V.  Bullard,  41  Cal.  444.  Michenor,  3  Stockt.  (N.  J.)  539. 

2  Dwen  V.  Blake,  44  111.  135.  ^  Jones  v.  Lapham,  supra,  per  Brewer, 
8  Alden  I'.  Garver,  32  III.  32.                        J. ;  Button  v.  Schroyer,  5  Wis.  598. 

*  Baker  v.  Bishop  Hill  Colony,  45  111.  «  Leivis  v.  Boskins,  27  Ark.  Gl  ;  Smith 

264  ;  Jones  r.  Lapham,  15  Kans.  540  ;  Bull  v.  Robinson,  13  Ark.  533  ;  Moore  v.  An- 

w.  Sykes,  7  Wis.  449;  Newhouse  v.  Hill,  dors,   14  Ark.   628;    Shall   v.  Biscoe,  18 

7   Blackf.   (Ind.)   584;  Fenno  v.  Sayre,  3  Ark.  142;  Graham  r.  McCampbell,  Meigs, 

Ala.  458;  Alderson  v.  Ames,   6  Md.  52;  52;    Tanner  i'.  Hicks,  4  S.  &  M.  (Miss.) 

Sinclair  !J.  Armitage,  1  Beas.  (N.  J.)  174  ;  294;    Pintard    v.   Goodloe,   Hemp.    502; 

Thredgill  v.  Pintard,  12  How.  24. 

VOL.  I.                              9  129 


§§  174-176.]  EQUITABLE   MORTGAGES. 

land  system  of  the  United  States,  to  make  title  at  the  time  of 
the  sale. 

174.  Although  the  contract  of  sale  be  conditional,  it  provid- 
ing that  the  purchaser  shall  do  certain  things  before  he  shall  be 
entitled  to  the  conveyance  of  the  land,  the  purchaser  has  an  in- 
terest before  the  performance  of  the  things  to  be  done  on  his  part, 
which  he  may  assign  by  way  of  security.  By  complying  with 
all  the  conditions  of  the  contract  he  acquires  an  equitable  title, 
and  when  he  has  that,  he  may  compel  a  conveyance  of  the  legal 
title.  He  may  also  sell  his  interest,  and  by  agreement  reserve 
a  lien  upon  the  contract  to  secure  his  vendee's  note  for  the 
purchase  price,  and  upon  the  failure  of  his  vendee,  to  pay  as 
agreed,  he  may  in  an  action  upon  the  note,  and  to  foreclose  his 
lien  upon  the  contract,  have  judgment  upon  the  note,  and  a  decree 
of  sale  of  the  interest  under  the  contract  to  satisfy  it.  There  is  a 
sufficient  interest  in  the  land  to  support  the  action,  although  it 
does  not  amount  to  a  title  or  estate.^ 

175.  The  assignment  of  a  partial  interest  in  a  contract  of  pur- 
chase, as  security  for  the  payment  of  a  debt,  is  an  equitable  mort- 
gage ;  and  the  mortgagee  may  enforce  his  rights  in  equity  against 
the  assignor  and  those  cUiimiiig  under  him  with  notice  of  his 
rights.  The  holder  of  the  legal  title  may  be  enjoined  from  mak- 
ing a  transfer  to  any  one  else  of  the  property  covered  by  the  as- 
signment.^ 

176.  The  assignment  of  a  certificate  of  purchase  of  public 
lands  issued  by  a  state  operates  as  an  equitable  mortgage,  when 
intended  to  secure  a  debt  due  from  the  assignor  to  the  assignee.^ 
It  may  be  enforced  for  the  debt,  and  for  money  paid  by  the  as- 
signee, in  order  to  prevent  a  forfeiture  of  the  title.*  A  clause  in 
a  mortgage  of  a  land  certificate,  empowering  the  mortgagee  to 
locate,  enter  upon,  enjo}^  and  dispose  of  said  land,  as  if  acquired 
by  a  good  and  lawful  title,  only  amplifies  the  security  without  ren- 

1  Curtis  V.  Buckley,  14  Kans.  449.  v.  Bounds,  I  Ohio  St.  107  ;  Hays  v.  Hall, 

2  Northup  V.  Cross,  Seld.  Notes  (N.  Y.),  4  Port.  (Ala.)  374  ;  Dodge  v.  Silverthorn, 
ll."),  12  Wis.  644. 

8  Hill  w.  Eldrcd,  49   Cal.  398;  and  see        *  Hill  u.  Eldred,  s!/pm. 
Wrij,'ht  V.  Shumway,  1   Biss.  23 ;  Storer 

130 


BY   ASSIGNMENTS  OF   CONTRACTS   OF   PURCHASE.         [§  177. 

dering  the  conveyance  absolute.^  The  mortgage  is  of  course  sub- 
ject to  the  payment  of  the  amount  due  upon  the  certificate. ^  If 
the  purchaser  pay  this,  the  amount  so  paid  becomes  a  prior  lien 
upon  the  proceeds  of  a  foreclosure  sale  of  the  land.^ 

A  mortgage  made  by  assigning  a  contract  of  purchase,  or  a  land 
certificate,  may  be  foreclosed  by  a  bill  in  equity,  in  which  a  decree 
■will  be  made  for  the  sale  of  the  right  under  the  contract.'* 

An  assignment  of  land  certificates,  such,  for  instance,  as  the 
school  land  certificates  in  some  states,  which  are  by  their  terms 
transferable  by  assignment  and  delivery,  amounts  to  an  equitable 
mortgage.^  In  like  manner  certificates  of  stock  in  an  unincor- 
porated joint  stock  company,  representing  an  interest  in  real 
estate,  may  be  mortgaged  in  equity.  The  mortgage  in  such  case 
is  of  course  subject  to  the  debts  of  the  company,  and  to  existing 
equities  in  favor  of  other  stockholders.^ 

A  settler  upon  public  lands  under  the  homestead  act,  after 
making  proof  of  compliance  with  all  the  requirements  of  the  law, 
so^s  to  be  entitled  to  a  patent,  may  make  a  valid  mortgage,  al- 
though the  patent  has  not  been  issued.^  But  if  he  sell  the  land 
to  another  who  obtains  the  title  from  the  United  States,  the  mort- 
gagee will  lose  his  title. '^ 

177.  A  preemptor  of  public  land  cannot  mortgage  his  in- 
terest before  entry.  —  But  a  valid  mortgage  cannot  be  made  by 
a  preemption  of  public  land  before  the  entry  of  it  according  to 
law.  The  statutes  of  the  United  States  provide  that  any  grant 
or  conveyance  made  before  entry  shall  be  void.  Even  where  a 
mortgage  is  regarded  as  neither  a  grant  nor  a  conveyance,  and 
therefore  not  within  the  letter  of  the  statute,  it  is  construed  to 
include  a  mortgage  within  its  prohibition.  The  intention  of  the 
act  was,  that  the  title  should  be  perfect  and  unincumbered,  when 
it  passes  from  the  United  States  by  the  entry  to  the  settler.^ 

1  Ross  V.  Mitchell,  28  Tex.  150.  ^  Sec.  13  of  the  Act  of  Congress,  Sept. 

2  Dodge  V.  Silverthorn,  supra.  4,    1841  (U.   S.    Stat,   at  Large,  p.  456), 

3  Doilge  V.  Silverthorn,  supra.  provides  that  before  an  entry  shall  be  al- 

*  Cruinbaughi;.  Smock,  1  Blackf.  (Ind.)     lowed  the  claimant  shall  make  oath  that 
305.  "  he  has  not  directly  or  indirectly  made  any 

6  Mowry  v.  Wood,  1 2  Wis.  413  ;  Jarvis     agreement  or  contract,  in  any  manner,  with 
V.  Dutcher,  16  Wis.  307.  any   person   or    persons    whatsoever,   by 

s  Durkee  y.  Stringham,  8  Wis.  1.  which  the    title   which  he  might   acquire 

7  Jones  V.  Yoakam,  5  Neb.  265.  from  the  government  of  the  United  States 

*  Bull  V.  Shaw,  48  Cal.  455.  should  enure  in  whole  or  in  part  to  the 

131 


§§  178,  179.]  EQUITABLE   MORTGAGES. 

178.  Statutory  mortgage.  —  A  mortgage  may  be  constituted 
by  act  of  legislature,  as  where  a  railroad  company  accepted  certain 
bonds  issued  under  an  act  which  declared  that  the  bonds  should 
"  constitute  a  first  lien  and  mortgage  upon  the  road  and  property  " 
of  the  company.  The  word  property  includes  all  the  lands  of  the 
company,  and  any  sale  made  by  it  is  subject  to  the  mortgage.^ 

The  bonds  of  a  corporation,  pledging  its  real  and  personal 
property  for  the  payment  of  the  debt,  are  treated  in  equity  as  a 
mortgage.^ 

3.  By  Deposit  of  Title  Deeds. 

179.  An  equitable  mortgage  may  be  created  by  deposit  of 
the  title  deeds  of  a  legal  or  an  equitable  estate  as  security  for 
the  payment  of  money .^  This  method  of  creating  a  lien  upon 
land  is  of  much  more  frequent  use  in  England  than  in  this  coun- 
try. There,  in  the  absence  of  a  general  system  of  recording,  the 
possession  of  the  title  deeds  of  an  estate  is  evidence  of  title.  A 
transfer  cannot  be  made  without  them.  No  one  is  supposed, to 
have  the  right  to  retain  them,  unless  he  has  a  legal  or  equitable 
claim  to  the  estate  they  represent.  In  all  transfers  of  real  estate 
the  original  deeds  go  with  the  property  as  evidences  of  title,  and 
their  examination  by  the  solicitor  of  the  parties  is  a  prerequisite 
to  every  sale.  Except  in  the  counties  of  Middlesex  and  York, 
there  are  no  registries  where  search  can  be  made  to  ascertain  the 
titles  to  lands,  with  the  exception  of  copyhold  titles,  which  are 
always  to  be  found  recorded  in  the  manor  courts.  The  only  se- 
curity which  the  purchaser  has  for  the  validity  of  his  grantor's 
title  is  possession  of  the  deeds  which  establish  it. 

In  the  United  States,  however,  the  reason  for  this  doctrine 
does  not  exist.  The  registry  system  dispenses  with  the  necessity 
of  any  production  of  title  deeds,  and  supplies  all  the  evidence  to 
protect  both  vendor  and  vendee.  It  furnishes  at  once  a  true 
statement  of  the  present  condition  of  all  legal  rights  to  land,  and 

benefit  of   any   person    except    himself."  ^  Wilson  v.  Boyce,  92  U.  S.  320. 

And  it  also  provides,  that  "  any  grant  or  2  "White  Water  Valley  Co.  v.  Valletta, 

conveyance   which   he    may   have    made,  21  How.  414. 

except  in  the  hands  of  a  bona  fide  pur-  ^  Russel  v.  Eussel,   1   Bro.  C.  C.  269 ; 

chaser  for  valuable  consideration,  shall  be  Pye  t;.  Daubuz,  2  Dick.  759;  Whitbread 

null  and  void."    Warren  v.  Van  Brunt,  19  .v.  Jordan,  1  Y.  &  C.  303  ;  Mandeville  v. 

Wall.  64G  ;  Brewster  v.  Madden,  15  Kans.  Welch,  5  Wheat.  277  ;  Jarvis  v.  Dutcher, 

249  ;  McCue  v.  Smith,  9  Minn.  252.  16  Wis.  307  ;  Carey  v.  Rawson,  8  Mass.  159. 

132 


BY   DEPOSIT    OF   TITLE  DEEDS.  [§§  180,  181. 

if  an  original  conveyance  is  ever  lost  or  desti'oyed,  a  copy  from 
the  record  is  received  as  an  equivalent.^ 

180.  The  doctrine  in  England  is  well  established,  although 
it  has  been  received  with  considerable  disapprobation.  "  Now, 
since  the  case  of  Russel  v.  Russel,'^  says  Kindersley,  V.  C.,^  "  this 
is  well  settled :  that  supposing  A.,  owing  money  to  B.,  deposits 
the  title  deeds  of  his  estate  with  B.  for  the  purpose  of  a  security, 
even  without  any  writing,  it  is  a  good  equitable  mortgage  ;  it 
gives  B.  a  lien ;  and  notwithstanding  the  expressions  of  regret  of 
Lord  Eldon  that  the  law  should  be  so,  even  in  his  time,  we  find 
him  saying  he  could  not  disturb  it ;  since  that  time  it  has  been 
acted  upon  over  and  over  again.  That  doctrine  cannot  now  then 
be  disturbed." 

181.  The  legal  effect  of  the  deposit  is,  that  the  mortgagor 
contracts  that  his  interest  in  the  land  shall  be  liable  for  the  debt, 
and  that  he  will  make  such  a  mortgage  or  conveyance  as  may  be 
necessary  to  vest  that  interest  in  the  mortgagee.^  It  binds  what- 
ever interest  he  has  in  the  whole  property  described  in  the  title 
deeds.  It  does  not  imply  that  he  will  make  perfect  title  to  the 
property,  but  that  he  will  give  effect  to  the  interest  he  has  in  it 
at  the  time,  or  may  acquire  afterwards  during  the  deposit  by  the 
discharge  of  an  incumbrance  upon  it,*  or  the  like.  One  holding 
title  deeds  as  indemnity  against  contingent  liabilities  is  not  enti- 
tled to  a  formal  mortgage  before  he  has  paid  anything  on  account 
of  such  liability  ;  but  is  entitled  to  a  memorandum  giving  the 
terms  of  the  deposit.^ 

The  deposit  may  be  made  to  cover  subsequent  advances  by  a 
subsequent  parol  agreement  to  that  effect  between  the  parties, 
without  a  return  of  the  deeds  and  a  new  deposit  of  them.^ 

1  Probasco  i>.  Johnson,  2  Disney  (Ohio),  ^  Ex  parte  Langston,  17  Ves.  227  ;  Bay- 
96,  98.  nard  v.  Woolley,  20  Beav.  586  ;  Ex  parte 

2  In  Lacon  v.  Allen,  3  Drew.  579,  585.     Kensington,  2  V.  &  B.  79,  84. 

And  see  National  Bank  of  Australasia  v.  In  the  hitter  case  Lord  Eldon  said  :  "  In 

Cherry,  L.  R.  3  P.  C.  C.  299 ;  Kensington,  the  cases  alluded  to  I  went  the  length  of 

ex  parte,  2  V.  &  B.  79.  stating,  that,  where  the  deposit  originally 

3  Pryce  r.  Bury,  2  Drew.  41,  42,  per  was  for  a  particular  purpose,  that  purpose 
Kindersley,  V.  C.  may  be  enlarged  by  a  subsequent  parol 

*  Ex  parte  Bisdee,  re  Baker,  1  M.,  D.     agreement;  and  this  distinction  appeared 

&  De  G.  333.  to  me  to  be  too  thin,  that  you  should  not 

6  Sporle  V.  Whayman,  20  Beav.  607.  have  the  benefit  of  such  an   agreement 

133 


§§  182,  183.]  EQUITABLE   MORTGAGES. 

In  this  respect  an  equitable  mortgage  is  a  broader  security  than 
a  legal  one  ;  for  a  legal  mortgage  cannot  be  enlarged  in  its  effect 
by  a  subsequent  parol  agreement  that  it  shall  secure  further  ad- 
vances; and  although  the  mortgagee  holds  the  title  deeds,  he  is 
not  entitled  to  say  that  he  holds  them  as  a  deposit,^  unless  the 
parties  make  an  express  agreement  that  they  shall  be  so  held.^ 

182.  It  is  not  necessary  that  every  deed  relating  to  the 
property  should  be  deposited  ;  ^  nor  is  it  necessary  that  they 
should  show  a  title  in  the  mortgagor  by  including  the  deed  by 
which  he  acquired  title.*  A  deposit  of  the  title  deeds  omitting 
the  latter  deed  has  priority  over  a  subsequent  deposit  of  the  latter 
deed  alone.^ 

183,  Presumption  of  the  purpose  of  the  deposit.  —  It  is  held 
that  even  a  deposit  for  the  purpose  of  preparing  a  legal  mortgage 
creates  an  equitable  mortgage.^  "  The  principle  of  an  equitable 
mortgage  is,"  said  Lord  Eldon,'^  "  that  the  deposit  of  the  deeds  is 
evidence  of  the  agreement ;  but  if  they  are  deposited  for  the  ex- 
press purpose  of  preparing  the  securit}'-  of  a  legal  mortgage,  is  not 
that  stronger  than  an  implied  intention  ?  " 

Where  no  written  contract  or  memorandum  accompanies  the 
deposit,  the  presumption  that  a  mortgage  was  intended,  arising 
from  the  possession  of  the  deeds,  may  be  rebutted  by  parol  evi- 
dence of  the  circumstances  under  which  the  deeds  were  left,  and 
of  the  intention  of  the  parties  in  the  matter.^     Of  course  a  state- 

unless  you  added  to  the  terms  of  that  must  judge  whether  the  instrnments  de- 
agreement  the  fact,  that  the  deeds  were  posited  are  material  parts  of  the  title  ; 
put  back  into  the  hands  of  the  owner,  and  and  if  tiiey  are,  it  is  not  necessary  to  say 
a  redelivery  of  them  required  ;  on  which  there  are  other  deeds  material,  if  there  is 
fact  there  is  no  doubt  that  the  deposit  sufficient  evidence  to  show  that  the  deposit 
would  amount  to  an  equitable  lien,  within  was  made  for  the  purpose  of  creating  a 
the  principle  of  these  cases."  mortgage." 

1  Ex  parte  Hooper,  re  Hewett,  1  Mer.  7.  *  Roberts  v.   Croft,  2-t  Beav.  223  ;  aff. 

2  Re  Henry,  ex  parte  Crossfield,  3  Ir.  2  De  G.  &  J.  1. 

Eq.  67.  5  Roberts  v.  Croft,  supra. 

"  Ex  parte  Wethcrell,  11  Ves.  401  ;  La-  «  Ex   parte  Hooper,  1  Mer.  7  ;  19  Ves. 

con  V.  Allen,  3  Drew.  582.     In   the  lat-  477;  Hockley  v.  Bantock,  1  Russ.  141. 

ter  case,  Kindersley,  "V.  C,   said  :  "  The  ^  Ex  parte  Bruce,  1  Rose,  374  ;  and  see 

question  is,  is  it  necessary  that  every  title  Ex  parte  Wright,  19  Ves.  258. 

deed  should  be  deposited  ?     Suppose  the  ^  Ex  parte  Laugston,  17  Ves.  227  ;  Lu- 

owner  has  lost  an  important  deed,  could  cas  v.  Darrieu,  1  Moo.  29 ;  7  Taunt.  278. 
he  not  deposit  the  rest?    In  each  case  we 

134 


BY   DEPOSIT    OF   TITLK   DEEDS.  [§§  184-186. 

ment  in  writing  of  the  purpose  for  which  the  deposit  was  made 
cannot  be  contradicted.^ 

184.  Law  of  place  of  contract  governs.  —  When  a  citizen  of 
a  foreign  countr^^  by  the  hiw  of  which  a  Ken  cannot  be  created  in 
this  way,  being  in  England,  there  makes  a  deposit  of  title  deeds 
as  security,  his  contract  is  governed  by  the  law  of  England.^ 

185.  In  America  the  doctrine  of  a  mortgage  by  deposit  of  title 
deeds  has  been  adopted  only  to  a  very  limited  extent.  Generally, 
something  more  is  required  than  a  mere  verbal  agreement  or  un- 
derstanding that  the  creditor  is  to  hold  them  as  security  or  in- 
demnity. To  create  a  lien  upon  land  in  this  way  would  be,  it  is 
declared,  to  repeal  judicially  the  statutes  of  frauds  and  perjuries, 
making  void  sales  not  evidenced  by  writing.  The  doctrine,  more- 
over, is  not  compatible  with  the  registry  system. 

The  attempts  to  apply  the  doctrine  have  not  been  very  numer- 
ous, it  being  generally  understood  that  it  has  no  application  here. 
The  doctrine,  therefore,  may  be  considered  as  generally  rejected, 
so  far  as  it  sustains  a  mortgage  upon  a  verbal  or  implied  promise 
in  connection  with  the  deposit  of  the  deeds. ^ 

186.  Yet  in  several  cases  mortgages  created  in  this  "way 
have  been  sustained.  —  The  deposit  of  a  deed,  conveying  the 
legal  title  to  an  estate  as  security  for  the  amount  of  a  mortgage 
released  by  the  person  receiving  the  deposit,  was  held  to  consti- 
tute an  equitable  mortgage,  as  between  the  original  parties  and 
those  subject  to  their  equities.'^  A  court  of  equity  in  such  case 
will  not  compel  the  holder  of  the  deeds  to  deliver  them  up  until 
he  has  received  payment  of  the  debt  for  which  they  were  pledged.^ 
On  the  contrary  it  will  establish  the  lien  and  enforce  a  sale  of  the 

1  Ex  parte  Coombe,  17  Ves.  369  ;  Bay-  438  ;  Gothard  v.  Flynn,  25  Miss.  58.  The 
nard  v.  Woolley,  20  Beav.  583.  "  question  was  previously  raised  in  Missis- 

2  Ex  parte  Holthausen,  re  Scheibler,  sippi,  in  Williams  v.  Stratton,  10  Sm.  & 
L.  R.  9  Ch.  722.     See  Varden  Seth  &im    M.  418. 

r.  Luckpathy  Koyjee  Lallah,  9  Moo.  Ind.  *  Hackett   v.    Reynolds,   4   R.  I.    512; 

App.  303.     See,  also.  Ex  parte  Pollard,  Rockwell    v.    Hobby,   2    Sandf.    (N.   Y.) 

in  re  Courtney,  Mon.  &  C.  239.  Ch.  9. 

8  Shitz  V.  DietFenbacb,  3  Pa.  St.  2.33;  5  See  Griffin  r.  Griffin,  18  N.  J.  Eq.  104, 

Meador  v.  Meador,  3  Heisk.  (Tcnn.)  562  ;  decided  with  reference  to  New  York  law. 
Vanmeter  v.  McFaddin,  8  B.  Mon.  (Ky.) 

135 


§§  187,  188.]  EQUITABLE   MORTGAGES. 

depositor's  interest,  and  the  interest  of  those  subject  to  this 
equity.^  A  suit  in  equity  is  the  proper  means  to  establish  the 
lien,  and  the  decree  should  be  for  a  sale,  if  the  debt  be  not  paid 
by  a  given  day.^ 

187.  A  written  memorandum  makes  the  deposit  a  mort- 
gage. —  But  even  where  a  deposit  of  title  deeds  upon  a  verbal 
agreement,  that  they  shall  be  held  as  security  for  a  debt,  does  not 
constitute  an  equitable  mortgage,  a  written  agreement  to  the  same 
effect  accompanying  the  deeds  will  make  the  transaction  a  mort- 
gage.^ As  already  noticed,  such  written  agreement  alone  without 
the  deposit  of  title  deeds  is  regarded  as  an  equitable  mortgage. 

188.  How  an  equitable  mortgage  is  enforced.  —  Where  an 
equitable  mortgage  is  created  by  a  deposit  of  title  deeds  or  other 
equitable  transfer,  the  remedy  of  the  mortgagee,  to  cut  off  the 
equity  of  redemption,  is  by  a  suit  in  equity.^  When,  however,  a 
mortgage  is  created  by  a  conveyance  legal  in  form  of  an  equitable 
estate,  it  may  be  foreclosed  in  the  ordinary  way. 

When  a  mortgage  is  effected  by  an  assignment  of  an  executory 
contract  of  purchase,  a  foreclosure  and  sale  operate  only  to  trans- 
fer the  debt  to  the  purchaser,  who  becomes  in  equity  the  assignee 
of  the  mortgagor's  contract,  and  entitled  to  the  full  benefit  of  it 
without  redemption.  Such  a  mortgage  is  ineffectual  to  transfer 
the  legal  title,  although  the  mortgagor  may  have  subsequently 
acquired  that.     It  can  only  be  enforced  as  an  equitable  lien.^ 

1  Hackett  v.  Eeynolds,  supra.  *  Mowry  v.  Wood,  12  "Wis.  413  ;  Jarvis 

2  Jarvis  v.  Dutcher,  16  Wis.  307.  v.  Dutcher,  16  Wis.  307. 

3  Luch's  Appeal,  44  Pa.  St.  519;  Ed-         &  Stewart   v.  Hutcliinson,  29  How.  (N. 
wards  v.  Trumbull,  .'iO  Pa.  St.  509.  Y.)  Pr.  181. 

136 


CHAPTER  VI. 

LIENS   FOR   PURCHASE  MONEY. 
PART  I. 

THE    vendor's    implied    LIEN. 

1.  Nature  and  Extent  of  the  Lien. 

189.  Nature  of  the  lien. — It  is  a  doctrine  of  the  English 
courts  of  c|iancery  that  a  vendor  has  a  Hen  upon  the  land  sold 
by  him  for  the  purchase  money,  as  against  the  vendee  and  his 
heirs,  although  he  has  taken  no  distinct  agreement  or  separate  se- 
curity for  it.  There  is  a  natural  equity,  it  is  said,  that  the  land 
shall  stand  charged  with  so  much  of  the  purchase  money  as  is  not 
paid  at  the  time  of  the  conveyance.^  It  is  also  said  that  the 
principle  of  it  originates  in  trust.^  "  Upon  principle,"  says  Lord 
Eldon,  "  without  authority,  I  cannot  doubt  that  it  goes  upon  this, 
that  a  person  having  got  the  estate  of  another  shall  not,  as  be- 
tween them,  keep  it,  and  not  pay  the  consideration."  ^ 

1  Chapman  v.  Tanner,  1  Vern.  267,  per  bargainor.  If  an  estate  is  sold,  and  no 
the  Lord  Keeper ;  Warren  v.  Fenn,  28  part  of  the  money  paid,  the  vendee  is  a 
Barb,  (N.  Y.)  334,  per  Potter,  J. :  "  It  has  trustee  ;  then,  if  part  be  paid,  is  it  not  the 
become  one  of  the  best  established  princi-  same  as  to  that  which  is  unpaid  ?  " 

pies  of  natural  equity, — that  estates  are         ^  Mackreth  v.  Symmons,  15  Ves.  329. 

to  be  regarded  as   unconscientiously  ob-  As  to  the  time  when  this  doctrine  was  es- 

tained  when  the  consideration  is  not  paid."  tablished.  Lord  Eldon  said  :  "  I  take  that 

2  Blackburn  v.  Gregson,  1  Bro.  Ch.  420,  to  have  been  the  settled  doctrine  at  the 
per  Lord  Loughborough  :  "  Lord  Bathurst  time  of  the  decision  of  Blackburn  v.  Greg- 
doubted  whether  there  was  such  an  equi-  son  ;  which  case  so  far  shook  the  authority 
table  lien.  Fawell  v.  Heelis,  Amb.  724.  of  Fawell  v.  Heelis  as  to  relieve  me  from 
It  becomes,  therefore,  of  great  consequence  any  apprehensions  that  Lord  Bathurst's 
that  it  should  be  spoken  to.  It  struck  me  doctrine  can  be  considered  as  affording  the 
always  that  there  was  such  a  lien,  and  rule,  to  be  applied  between  the  vendor  and 
that  it  was  so  from  the  foundation  of  the  vendee  themselves,  and  persons  claiming 
court.  A  bargain  and  sale  must  be  for  under  them."  And  sec  1  White  &  Tu- 
monev  paid,  otherwise  it  is  in  trust  for  the  dor's  Lead.  Cas.  in  Eq.  89. 

137 


§  190.]  LIENS   FOR   PURCHASE   MONEY. 

The  onl}''  other  ground  upon  which  it  has  been  suggested  that 
the  doctrine  rests  is  the  supposed  intention  of  the  parties  ;  and 
on  this  point  Chief  Justice  Gibson  remarks  :  ^  "  The  implication 
that  there  is  an  intention  to  reserve  a  lien  for  the  purchase  money 
in  all  cases  where  the  parties  do  not,  by  express  acts,  evince  a 
contrary  intention,  is  in  almost  every  case  inconsistent  with  the 
trutli  of  the  facts,  and  in  all  instances,  without  exception,  in  con- 
tradiction of  the  express  terms  of  the  contract,  which  purports  to 
be  a  conveyance  of  everything  that  can  pass." 

190.  As  to  the  grounds  of  the  doctrine.  Chief  Justice  Gray ,2 
in  a  careful  review  of  the  subject,  says :  "  The  theory  that  a  trust 
arises  out  of  the  unconscientiousness  of  the  purchaser  would  con- 
strue the  non-performance  of  every  promise,  made  in  consideration 
of  a  conveyance  of  property  to  the  promisor,  into  a  breach  of  trust ; 
and  would  attach  the  trust,  not  merely  to  the  purchase  money 
which  he  agreed  to  pay,  but  to  the  land  which  he  never  agreed 
to  hold  for  the  benefit  of  the  supposed  cestui  que  trust.''''  As  to 
the  natural  equity  of  the  lien  the  learned  Chief  Justice  quotes 
with  approval  the  argument  of  counsel  in  an  English  case,^  not 
answered  by  the  court:  "It  is  called  a  natural  lien  ;  but  it  cer- 
tainly is  not  so  with  respect  to  personalty,  which,  if  once  delivered, 
it  is  conclusive,  though  concealed  from  all  mankind  ;  and  there 
seems  as  much  natural  equity  in  the  case  of  personalty  as  realty." 

Chief  Justice  Gray,  after  examining  the  sources  from  which 
it  has  been  supposed  the  doctrine  of  this  lien  is  derived,  says :  * 
"  The  most  plausible  foundation  of  the  English  doctrine  would 
seem  to  be  that  justice  required  that  the  vendor  should  be  enabled, 
by  some  form  of  judicial  process,  to  charge  the  land  in  the  hands 
of  tlie  vendee  as  security  for  the  unpaid  purchase  money.  And 
the  restriction  of  the  doctrine  to  real  estate  suggests  the  inference 
that  the  Court  of  Chancery  was  induced  to  interpose  by  the  con- 
sideration that  by  the  law  of  England  real  estate  could  neither  be 
attached  on  mesne  process,  nor,  except  in  certain  cases,  or  to  a 
limited  extent,  taken  in  execution  for  debt."     In  conclusion  he 

1  Kauffelt  V.  Bower,  7  S.  &  R.  (Pa.)  64,  of  the  vendor's  lien  is  referred,  tlie  pur- 
76.  chase  price  of  personal  property  was  se- 

2  Ahrend  v.  Odiorue,  118  Mass.  261.  cured  in  the  same  way;  but   neither   in 

3  In  Blackburnc  v.  Gregson,  1  Cox  Ch.  England  nor  America  has  the  rule  been 
90,  100  ;  1  Bro.  Ch.  420.  extended  to  personalty. 

Under  the  civil  law,  to  which  the  origin        *  Ahrend  v.  Odiorne,  118  Mass.,^at  266. 

138 


THE    VENDOR  S    IMPLIED   LIEN. 


[§  191. 


decides  against  adopting  in  Massachusetts  "  a  doctrine  which  lias 
never  been  supposed  by  the  profession  to  be  in  force  here ;  which 
would  introduce  a  new  exception  to  the  statute  of  frauds;  which, 
as  experience  elsewhere  has  shown,  tends  to  promote  uncertainty 
and  litigation  ;  and  which  appears  to  us  to  be  unfounded  in  prin- 
ciple, unsuitable  to  our  condition  and  usages,  and  unnecessary  to 
secure  the  just  rights  of  the  parties."  ^ 

The  objection,  that  the  establishment  of  this  lien  is  in  contra- 
vention of  the  policy  of  the  statute  of  frauds,  is  met  by  the  reply 
that  the  lien  is  really  a  constructive  trust,  and  that  the  statute  is 
admitted  to  have  no  application  to  a  trust  arising  in  this  manner.^ 
"  It  is  not,  perhaps,"  says  Judge  Story,  "  so  strong  a  case  as  that 
of  a  mortgage  implied  by  a  deposit  of  the  title  deeds  of  the  real 
estate,  which  seems  directly  against  the  policy  of  the  statute,  but 
which  nevertheless  has  been  unhesitatingly  sustained."  ^ 

191.  How  far  adopted  in  this  country.  —  The  doctrine  of  a 
vendor's  lien  for  the  purchase  money  prevails  in  upwards  of  half 
in  number  of  the  states,^  and  in  the  other  states  the  doctrine  has 


1  Ahrend  v.  Odionie,  118  Mass.  at  267. 

2  Warren  v.  Fenn,  28  Barb.  (N.  Y.) 
334;  Wood  v.  Lester,  lb.  152;  Mims  v. 
Macon,  3  Kelly  (Ga.),  341  ;  and  see 
Womble  v.  Battle,  3  Ired.  Eq.  (N.  C.)  183, 
per  Nash,  J. 

3  2  Story's  Eq.  Jur.  §  1218,  and  see 
§  1221. 

*  Tlie  doctrine  prevails  in  :  — 

Alabama  :  Gordon  v.  Bell,  50  Ala. 
213;  White  v.  Stover,  10  Ala.  441  ;  Brad- 
ford V.  Harper,  25  Ala.  337  ;  and  also  ap- 
plied to  an  exchange ;  Burns  v.  Taylor, 
23  Ala.  255;  Wood  i'.  Sulleus,  44  Ala. 
686. 

Arkansas:  Shall  v.  Biscoe,  18  Ark. 
142  ;  Campbell  v.  Rankin,  28  Ark.  401 ; 
Turner  v.  Horner,  29  Ark.  440  ;  Lavender 
V.  Abbott,  30  Ark.  172;  Kefeld  v.  Fer- 
rell,  27  Ark.  534. 

But  in  Harris  i'.  Hanks,  25  Ark.  510- 
517,  the  court  say  that  a  recent  act  of  the 
legishiture  declares  that  no  lien  shall  be 
allowed  when  the  same  is  not  reserved. 

California  :  Salmon  v.  Hoffman,  2 
Cal.  138;  Sparks  v.  Hess,  15  Cal.  186; 
Burt  V.  Wilson,  28  Cal.  632 ;  Gallagher 
V.  Mars,  50  Cal.  23. 


It  is  also  provided  by  statute  that  one 
who  sells  real  estate  shall  have  a  vendor's 
lien  thereon,  independent  of  possession, 
for  so  much  of  the  price  as  remains  un- 
paid and  unsecured  otherwise  than  by  the 
personal  obligation  of  the  buyer.  Civil 
Code,  1872,  §  3046. 

Colorado  :  Francis  v.  Wells,  2  Col. 
660. 

District  of  Columbia  :  Ford  v. 
Smith,  1  McAr.  592. 

Florida:  Bradford  v.  Marvin,  2  Fla. 
463. 

Illinois  :  Moshier  v.  Meek,  80  111.  79  ; 
Keith  I'.  Horner,  32  111.  524 ;  Boynton  v. 
Champlin,  42  111.  57  ;  Dyer  v.  Martin,  4 
Scam.  148;  Wing  v.  Goodman,  75  111. 
159;  Kirkham  v.  Boston,  67  111.  599; 
Wilson  V.  Lyon,  51  111.  166. 

Indiana  :  Yaryan  v.  Shriner,  26  Ind. 
364;  Mattix  v.  Weand,  19  Ind.  151; 
Deibler  v.  Barwick,  4  Blackf.  339. 

Iowa  :  Grapengether  v.  Fejervary,  9 
Iowa,  163;  McDole  v.  Purdy,  23  Iowa, 
277  ;  Johnson  v.  McGrew,  42  Iowa,  555. 
But  criticised  in  Pierson  v.  David,  1  Iowa, 
23 ;  Porter  v.  City  of  Dubuque,  20  Iowa, 
440.     Must  be  reserved  in  deed  to  avail 

139 


§  191-] 


LIENS   FOR   PURCHASE   MONEY. 


either  been  rejected  from  the  beginning,  or  having  prevailed  at 
one  time  has  since  been  expelled  by  statute,^  although  it  may  be 


against  grantee's  conveyance.  Rev.  Stat. 
1873,  §  1940. 

Kentucky  :  Thornton  v.  Knox,  6  B. 
Mon.  74;  Ledford  v.  Smith,  6  Bush,  129  ; 
Tiernan  v.  Thurman,  14  B.  Mou.  277 ; 
Emison  v.  Risque,  9  Bush,  24.  But  it  is 
now  provided  by  statute  that  the  grantor 
shall  not  have  a  lien  against  bond  fide 
purchasers  and  creditors  unless  he  states 
in  his  deed  what  part  of  the  consideration 
remains  unpaid.     Gen.  Stat.  1873,  p.  589. 

Maryland:  Carr  v.  Hobbs,  11  Md. 
285. 

Michigan:  Payne  i-.  Avery,  21  Mich. 
524 ;  Carroll  v.  Van  Rensselaer,  Harr. 
(Mich.)  225. 

Minnesota  :  Duke  v.  Balme,  16  Minn. 
306 ;  Selby  v.  Stanley,  4  Minn.  65. 

Mississippi  :  Dodge  y.  Evans,  43  Miss. 
570;  Pitts  V.  Parker,  44  Miss.  247.  It 
has  been  applied  to  a  sale  of  a  leasehold 
estate.  Richardson  v.  Bowman,  40  INIiss. 
782. 

Missouri  :  Delassus  v.  Poston,  19  Mo. 
425 ;  Marsh  v.  Turner,  4  Mo.  253  ;  Pratt 
V.  Clark,  57  Mo.  189. 

New  Jersey  :  Herbert  v.  Scofield,  1 
Stock.  Ch.  492 ;  Corlies  v.  Howland,  26 
N.  J.  Eq.  311  ;  Dudley  v.  Matlack,  14  lb. 
252. 

New  York  :  Smith  v.  Smith,  9  Abb.  Pr. 
(N.  S.)  420;  Stafford  v.  Van  Rensselaer, 
9  Cow.  316;  Chase  v.  Peck,  21  N.  Y.  581. 

Ohio  :  Williams  v.  Roberts,  5  Ohio, 
35  ;  Brush  v.  Kinsley,  14  Ohio,  20  ;  Auke- 
tel  V.  Converse,  17  Ohio  St.  11. 

Oregon  :  Pease  v.  Kelly,  3  Oreg.  417. 

Tennessee  :  Ross  v.  Whitson,  6  Yerg. 
50. 

Texas:  Pinchain  v.  CoUard,  13  Tex. 
333  ;  Briscoe  v.  Bronaugh,  1  Tex.  326  ; 
White  V.  Downs,  40  Tex.  225  ;  Yarbor- 
ough  V.  Wood,  42  Tex.  91  ;  Brown  v. 
Christie,  689. 

Wisconsin  :  Willard  v.  Rcas,  26  Wis. 
540. 

1  The  doctrine  is  rejected  or  not  adopted 
in  the  following  states  :  — 

140 


Connecticut  :  Not  adopted,  and  may 
be  considered  in  doubt.  Atwood  v.  Vin- 
cent, 17  Conn.  575;  Chapman  v.  Beards- 
ley,  31  Conn.  115;  Meigs  v.  Dimock,  6 
Conn.  464 ;  Watson  v.  Wells,  5  Conn. 
468.  In  the  case  first  cited  Church,  J., 
said  :  "  In  this  state,  we  have  not  yet  had 
occasion  to  resort  to  it." 

Georgia  :  Now  abolished  by  statute, 
althougii  it  formerly  existed.  Code,  1873, 
§  1997  ;  Jones  v.  Janes,  56  Ga.  325. 

Kansas  :  Denied.  Simpson  v.  Muhdee, 
3  Kans.  172  ;  Brown  v.  Simpson,  4  lb.  76  ; 
Suiith  V.  Rowland,  13  lb.  245. 

Maine  :  Considered  and  rejected  in  Gil- 
man  V.  Brown,  1  Mason,  192,  219;  Phil- 
brook  V.  Delano,  29  Me.  410,  415. 

Massachusetts  :  Denied.  Oilman  v. 
Brown,  supra ;  repudiated  in  Ahrend  v. 
Odiorne,  118  Mass.  261. 

New  Hampshire:  Its  existence  ques- 
tioned in  Arlin  v.  Brown,  44  N.  H.  102. 

North  Carolina  :  Denied.  Womble 
V.  Battle,  3  Ired.  Eq.  182;  Henderson  v. 
Burton,  lb.  259  ;  Cameron  v.  Mason,  7 
lb.  180;  though  it  had  been  adopted  in 
earlier  cases. 

Pennsylvania  :  Denied.  Kauffelt  v. 
Bower,  7  S.  &  R.  64 ;  Hepburn  v.  Sny- 
der, 3  Barr,  72  ;  Stephen's  Appeal,  38  Pa. 
St.  9. 

Rhode  Island  :  Considered,  but  not 
adopted,  in  Perry  v.  Grant,  10  R.  I.  334. 

South  Carolina  :  Denied.  Wragg  v. 
Comp.  Gen.  2  Desau.  509,  520. 

Vermont  :  Judicially  adopted  in  Man- 
ly V.  Slason,  21  Vt.  271  ;  but  abolished 
by  legislature  immediately.  St.  of  1851, 
c.  47  ;   Gen.  Stat.  1862,  c.  65,  §  33. 

Virginia  :  Though  it  formerly  existed, 
it  is  now  abolished  unless  it  be  expressly 
reserved  on  the  face  of  the  conveyance. 
Code,  1873,  c.  115,  §  1. 

West  Virginia:  Abolished,  unless  it 
be  expressly  reserved  on  the  face  of  the 
conveyance.     Code,  1870,  c.  75,  §  1. 


THE   vendor's   implied   LIEN.  [§  191. 

that  in  a  few  states  the  question  of  its  existence  has  not  been  defi- 
nitely decided.  In  tlie  courts  of  the  United  States  the  doctrine  has 
never  been  affirmed,  except  where  established  by  the  local  law  of 
the  different  states.-^  The  doctrine,  even  in  those  states  that  have 
adopted  it,  has  frequently  been  criticised  and  deplored,  as  incon- 
sistent with  the  general  policy  prevailing  in  this  country  to  make 
all  matters  of  title  depend  upon  record  evidence.^ 

The  doctrine  is  no  more  satisfactory  now  than  it  was  in  Lord 
Eldon's  time  ;  in  fact,  it  is  ranch  less  so.  From  the  nature  of  the 
equity,  there  could  be  but  few  fixed  rules  regarding  it ;  but  it  will 
be  observed  in  following  the  American  decisions,  which  are  nu- 
merous, that  there  is  hardly  a  rule  upon  the  subject  that  has  not 
been  somewhere  denied  ;  that  hardly  any  two  states  can  be  found 
in  which  the  courts  agree  upon  all  the  important  points  of  the 
doctrine ;  and  that  the  cases  are  not  rare  in  which  the  decisions  in 
the  same  state  are  irreconcilable. ^  The  remark  of  Lord  Mans- 
field, that  "  The  more  we  read,  the  more  we  shall  be  confounded," 
is  not  without  its  application  here. 

This  is  eminently  a  subject  of  case  law.  To  a  large  degree 
each  case  is  a  law  unto  itself  and  unto  no  other  case. 

The  inquiry  in  every  case  is,  whether  there  are  other  equities 
superior  to  this  lien,  or  whether  it  has  been  waived  by  any  act  of 
the  party  claiming  it.  "  Its  existence,"  says  Mr.  Justice  Potter,* 
"  depends  upon  and  is  controlled  by  no  well  settled  rules,  but,  on 
the  contrary,  the  existence  of  the  lien  is  generally  made  to  depend 
upon  the  peculiar  state  of  facts  and  circumstances  surrounding  the 
particular  case  ;  that  is,  wdiether  or  not  a  case  of  natural  equity  is 
established,  and,  if  so,  whether  it  is  not  made  to  yield  to  higher 
or  superior  equities  in  some  other  person  ;  whether  the  party  is 
not  to  be  regarded  as  having  waived  it,  or  as  having  intended  to 

1  Bayley   v.   Greenleaf,   7    Wheat.  46  ;  years,  several  states   have   abolished  this 

M'Lean  v.  M'Lellan,    10  Pet.  625,  640 ;  implied  lien,  and  that  strong  expressions 

Chilton  V.  Braiden,  2  Black,  458.  of   disapprobation   of   the   doctrine   have 

^  See  Chief  Justice  Marshall's  remarks  been  used  in  others.     Moreover,  the  prac- 

in  Bayley  v.  Greenleaf,  7  Wheat,  46,  51  ;  tical  tendency  in  the  older  states  is  to  rely 

per  Treat,   J.,  in  Conovcr  j;.  Warren,   1  upon  formal  instruments  for  security  when 

Gilm.  (111.)  498,  502  ;  Yancey  v.  Mauck,  security  is  wanted.     It  may  be  doubted, 

15    Gratt.    (Va.)    300.     And   it   was  fre-  therefore,  whether  this  doctrine  will  long 

quently  condemned  in  the  courts  of  Vir-  survive. 

ginia  before  it  was  abolished  by  statute.  ■*  Fisk  v.  Potter,  2  Abb.  (N.  Y.)  App. 

McCandlish  v.  Keen,  13  Gratt.  615,  621.  Dec.  138;  2  Keyes  (N.  Y.),  64. 

3  It  is  to  be  noticed  that,  within  a  few 

141 


§§  192,  193.]  LIENS   FOR   PURCHASE  MONEY. 

waive  or  postpone  it  to  another  equity ;  or  whether  by  the  acts 
or  omissions  to  act,  or  by  the  neglect  of  the  party  claiming  such 
lien  to  enforce  it  within  a  reasonable  time,  the  I'ight  is  not  lost  as 
being  the  superior  claim.  These  considerations  control  and  vary 
the  result  as  equity  demands." 

192.  The  lien  is  presumed  to  exist  in  all  cases  unless  an  in- 
tention be  clearly  manifest  that  it  shall  not  exist. ^  The  vendee 
has  the  burden  of  repelling  the  presumption  of  a  lien.  It  being  a 
matter  of  intention,  its  existence  depends  upon  the  circumstances 
of  each  case.  "  What  shall  be  sufficient  to  make  a  case  in  which 
the  lien  can  be  said  not  to  exist,"  is  always  the  inquiry  to  be 
made ;  and  for  this  reason,  so  inconvenient  and  unsatisfactory  is 
the  doctrine  that  Lord  Eldon  said :  ^  "It  has  always  struck  me, 
considering  this  subject,  that  it  would  have  been  better  at  once  to 
have  held  that  the  lien  should  exist  in  no  case,  and  the  vendor 
should  suffer  the  consequences  of  his  want  of  caution  ;  or  to  have 
laid  down  the  rule  the  other  way  so  distinctly,  that  a  purchaser 
might  be  able  to  know,  without  the  judgment  of  a  court,  in  what 
cases  it  would  and  in  what  cases  it  would  not  exist." 

193.  Extent  of  the  lien.  —  The  lien  exists  to  the  extent  of 
the  purchase  money  against  the  vendee  and  his  heirs  ;  against  his 
privies  in  estate,  and  against  subsequent  purchasers  who  have  no- 
tice of  it ;  against  those  who  take  a  conveyance  of  the  estate  with- 
out advancing  any  new  consideration,  so  that  they  are  not,  within 
the  meaning  of  the  rule  of  equity,  purchasers  for  value  ;  and 
against  voluntary  assignees  also  who  are  not  bond  fide  purchasers. 

It  covers  interest  on  the  purchase  money  ;  ^  but  it  does  not  give 
the  vendor  any  claim  to  the  profits  of  the  land.^  If  the  vendor 
has  been  in  receipt  of  the  rents  under  an  agreement  that  he  should 
collect  and  apply  them  to  the  debt,  his  right  to  them  will  cease 
upon  the  vendee's  bankruptcy.^ 

1  Per  Lord  Eldon,  in  the  leading  case  Paige   (N.  Y.),  382;  Wilson   i'.  Lyon,  51 

before  cited;    Oilman  v.  Brown,   1   Mas.  111.166;  Dodge  t;.  Evans,  43  Miss.  570. 

191,  213  ;  Garson  v.  Green,  1  Johns.  (N.  -  In  the  leading  case  before  cited. 

Y.)Ch.  308;  Allen  r.  Bennett,   8  Sin.  &  ^  Succession  of  Richardson,  10  La.  Ann. 

M.  (Miss.)  G72,  681;  Truebody  i;.  Jacob-  616. 

son,   2    Cal.  269;  Schnebly  v.   llagan,  7  *  Little  y.  Brown,  2   Leigh  (Va.),  3.53; 

Gill   &  J.    (Md.)    120;  Clark   v.  Hall,  7  Hall  o.  Scovel,  10  Bank.  Reg.  295. 

^  Hall  V.  Scovel,  supra. 

142 


THE   vendor's   implied   LIEN.  [§  194* 

The  lien  cannot  be  extended  to  any  other  mdebtedness  of  the 
vendee  arising  from  other  transactions.^  When  a  note  is  given  in 
part  for  purchase  money  and  in  part  for  other  consideration,  it 
may  be  enforced  as  a  lien  for  the  part  representing  the  unpaid 
price  of  the  land,  if  it  can  be  shown  precisely  what  part  of  it  was 
for  that  consideration. 2 

It  has  been  held  that  this  lien  may  arise  upon  the  sale  of  a  mere 
equitable  interest.^ 

It  is  held  to  apply  to  sales  made  under  j^rocess  of  law  as  well  as 
to  voluntary  sales.* 

The  lien  is  sustained  against  the  vendee's  heirs,  because  if  it  was 
against  conscience  that  he  himself  should  have  the  land  without 
paying  for  it,  it  is  equally  against  conscience  that  his  heirs  should 
be  allowed  to  hold  it.^ 

The  widow's  right  to  dower  in  the  estate  is  subject  to  the  lien.^ 

The  right  of  homestead  is  also  subject  to  the  lien.'^ 

194.  For  unliquidated  claim.  —  The  lien  does  not  exist  as  a 
security  for  an  unliquidated  and  uncertain  demand ;  ^  as  for  in- 
stance an  obligation  to  support  the  vendor  for  life,^  or  to  assume, 
and  pay  the  debt  of  another.-^  It  may  be  said,  too,  that  when 
the  sale  is  not  made  for  a  sum  of  money,  but  in  consideration 
of  a  covenant  or  agreement  to  do  certain  things,  the  covenant  or 

1  Eefeld  v.  Ferrell,  30  Ark.  465.  terson  v.  Edwards,  29  Miss.  67 ;  Sears  v. 

2  Swain  v.  Cato,  34  Tex.  395  ;  Russell  Smith,  2  Mich.  243 ;  Van  Doren  v.  Todd, 
V.  McCormick,  45  Ala.  587  ;  and  see  Har-     2  Green  (N.  J.)  Ch.  397. 

lis  V.  Hanks,  25  Ark.  510.  But  in  an  Iowa  case  the  lien  was  al- 

3  Warren  v.  Fenn,  28  Barb.  (N.  Y.)  lowed  and  enforced  in  an  exchange  of 
333.  lands,  for  a  deficiency  in  the  value  of  the 

*  Mims  V.  Macon,  &c.  3  Kelly   (Ga.),  lands  taken  in  exchange,  on   account  of 

342.  the  fraudulent  representations  of  the  other 

&  Bayley  v.   Greenlcaf,    7    Wheat.  46  ;  party  ;   McDole  v.  Purdy,  23  Iowa,  277  ; 

Cole  V.  Scot,  2  Wash.  (Va.)   141  ;  Shir-  and  in  a  case  before  the  Supreme  Court 

ley  V.   Sugar  Refinery,  2  Edw.    (N.  Y.)  of  New  York,  land  having  been  sold  to  a 

505  ;    Warner  v.  Van  Alstyne,   3   Paige  corporation  to  be  paid  for   in   its   stock, 

(N.  Y.),  513.  upon  failure  to  deliver  the  stock  the  lien 

In  California,  by  statute,  the  lien  is  valid  was  established.    Dubois  v.  Hull,  43  Barb, 

against    every   one   claiming    under    the  26. 

debtor,   except    a    purchaser    or    iucum-  ^  Arlin  v.  Brown,  44  N.  H.  102  ;  Braw- 

brancer   in    good   faith.      Civil   Code,    §  ley  ?•.   Catron,  8   Leigh  (Va.),  522;  Mc- 

2048.  Killip  v.  McKillip,  8  Barb.  (N.  Y.)  552; 

6  Fisher  v.  Johnson,  5  Ind.  492.  Chase  i'.  Peck,  21  N.  Y.  581. 

T  McHendry  v.  Reilly,  13  Cal.  75.  ^  Chapman  v.  Beardsley,  31  Conn.  115. 


Payne  i-.  Avery,  21   Mich.  524 ;  Pat- 


143 


§§  195,  196.]  LIENS   FOR  PURCHASE    MONEY. 

agreement  is  then  itself  the  consideration,  and  in  obtaining  the 
covenant  or  agreement  the  vendor  has  been  paid  all  he  contracted 
for.i  And  so  if  other  property  be  taken  in  exchange,  the  title 
of  which  is  covenanted  by  the  vendee,  it  is  considered  that  the 
vendor  has  evinced  an  intention  to  rely  upon  that  remedy,  and  has 
waived  his  lien.^ 

195.  As  aflfected  by  agreements  of  the  parties.  —  This  lien 
does  not  spring  from  any  agreement  of  the  parties,  and  is  wholly 
independent  of  any  such  agreement.  Moreover,  the  fact  that 
there  is  a  verbal  agreement  of  the  parties  that  the  vendee  shall 
reconvey  the  land  if  he  does  not  pay  the  purchase  price,  does  not 
prevent  the  enforcement  of  the  lien ;  for  such  an  agreement  is 
void  under  the  statute  of  frauds. ^ 

196.  Parol  evidence  that  no  lien  was  intended.  —  It  seems 
that  it  may  be  shown  by  parol  evidence,  that  the  bond  or  note 
was  accepted  in  full  discharge  of  the  price  of  the  land.  "  It  is  the 
vendor,"  says  Sir  John  Leach,^  "  who  in  the  first  place  attempts 
to  raise  an  equity  against  the  allegation  of  the  deed  ;  and  if  the 
vendor  be  permitted  to  repel  the  effect  of  the  deed  by  showing 
that  the  price  was  not  paid,  it  must  necessarily  follow,  that  the 
vendee  must  be  at  liberty  to  disclose  the  whole  truth,  and  to  ex- 
plain the  reason  why  that  payment  was  not  made." 

Parol  evidence  in  such  case  does  not  vary  or  contradict  any 
writing,  as  the  lien  does  not  exist  by  writing,  and  no  writing  is 
required  to  release  it.  Any  act  or  declaration  of  the  vendor 
which  shows  that  he  does  not  rely  upon  his  lien  now,  or  that  he 
never  relied  upon  it,  or  that  he  has  abandoned  the  lien,  will  pre- 
vent its  being  established.  Thus,  where  a  father  had  conveyed 
land  to  his  son,  taking  his  notes  for  the  price,  and  afterwards  de- 
clared that  he  did  not  intend  to  collect  the  notes,  it  was  held  that 
such  declaration  clearly  showed  he  did  not  intend  to  rely  upon 
the  lien,  or  to  enforce  it,  and,  consequently,  his  representatives 
after  his  decease  were  not  allowed  to  enforce  it.^ 

1  Buckland  v.  Pocknell,  13  Sim.  406 ;  «  !„  Winter  v.  Lord  Anson,  1  S.  &  S. 
Dixon  V.  Gayfere,  17  Beav.  421  ;  21  lb.  434;  Perry  v.  Grant,  10  R.  I.  334;  Doo- 
118.  little  V.  Jenkins,  55  111.  400  ;  and  see  Kirk- 

2  Hare  v.  Van   Deusen,  32  Barb.  (N.  ham  v.  Boston,  67  111.  599. 

Y.)  92  ;  Coit  V.  Fougera,  36  lb.  195.  5  Moshier  v.  Meek,  80  111.  79. 

^  Gallagher  v.  Mars,  50  Cal.  23 

144 


THE   vendor's  implied   LIEN.  [§§  197,  198. 

197.  Acknowledgment  of  receipt  of  money.  —  The  lien  is 
not  waived  by  any  acknowledgment  of  the  receipt  of  the  consider- 
ation, whether  that  be  contained  in  the  body  of  the  deed,  or  on  the 
back  of  it,  or  in  a  separate  instrument.^  One  purchasing  from 
the  vendee,  finding  a  recital  of  payment  of  the  consideration  in 
the  deed,  may  well  infer  that  it  has  in  fact  been  paid  ;  but  if  he 
knows  to  the  contrary  the  acknowledgment  does  not  protect  him. 
Evidence  that  it  was  not  paid  may  be  given,  and  then  notice  of 
this  fact  to  the  purchaser  may  be  brought  home  to  him.^ 

2.  How  defeated  and  waived. 

198.  The  lien  is  not  waived  by  taking  a  note  or  bond  or 
other  personal  obligation  of  the  purchaser  alone,  for  the  amount  of 
the  unpaid  purchase  money.^  The  taking  of  such  written  evidence 
of  the  debt  does  not  by  itself  show  an  intention  to  rely  exclusively 
upon  the  purchaser's  credit.  Nor  does  the  fact,  that  the  time  of 
payment  is  by  such  obligation  postponed,  affect  the  lien  ;  even  if 
postponed  during  the  lifetime  of  the  vendor.*  But  when  it  ap- 
pears that  the  bond  or  note  is  all  that  the  vendor  intended  to  re- 
ceive for  the  conveyance  made  by  him,  and  that  such  personal 
security  was  substituted  for  the  purchase  money,  there  is  no  lien.^ 
The  fact  that  the  note  or  bond  is  received  expressly  in  considera- 
tion of  the  conveyance,  and  in  full  satisfaction  for  it,  may  appear 

1  Mackreth  v.  Symmons,  15  Ves.  329  ;  v.  Hunt,  3  J.  J.  Marsh.  (Ky.)  553,  558  ; 
Cuney  v.  Bell,  34  Tex.  177  ;  Oilman  v.  Thornton  v.  Knox,  6  B.  Mon.  (Ky.)  74; 
Brown,  1  Mas.  192,  214;  Scott  i'.  Orbison,  Honore  v.  Bakewell,  lb.  67  ;  Christian  v. 
21  Ark.  202;  Holman  v.  Patterson,  29  Austin,  36  Tex.  540;  Pinchain  v.  Col- 
Ark.  357  ;  Sheratz  v.  Nicodemus,  7  Yerg.  lard,  13  Tex.  333  ;  Bradford  v.  Harper, 
(Tenn.)  9;  Tribble  v.  Oldham,  5  J.  J.  25  Ala.  337  ;  Plowman  u.  Riddle,  14  Ala. 
Marsh.  (Ky.)  137,  144.  169;  Baum  v.  Grigsby,  21  Cal.  172;  An- 

2  Gordon  v.  Manning,  44  Miss.  756.  drews  v.  Scotton,  2  Bland  (Md.),  629. 

3  Mackreth  v.  Symmons,  15  Ves.  329  ;  The  rule  applies  equally  to  a  check  or 
Manly  v.  Slason,  21  Vt.  271;  White  v.  draft;  Honore  v.  Bakewell,  6  B.  Mon. 
Williams,  1  Paige  (N.  Y.),  502  ;  Garson  (Ky.)  67  ;  or  certificate  of  deposit.  Mims 
V.  Green,  1  Johns.  (N.  Y.)  Ch.  308  ;  Cor-  v.  Macon,  &c.  R.  R.  Co.  3  Ga.  333. 

lies  V.  Howland,  26  N.  J.  Eq.  311  ;  War-  *  Winter  v.  Lord  Anson,  3  Russ.  488, 

ren  v.  Fenn,  28  Barb.  (N.  Y.)  333  ;  Brink-  reversing  S.  C.  1  S.  &  S.  434 ;  Bedford  v. 

erhoff  V.  Vansciven,  3  Green    (N.  J.)  Ch.  Gibson,  12  Leigh  (Va.),  332,347. 

251;  Evans  v.  Goodlet,   1  Blackf.   (Ind.)  &  Dixon  v.  Gayfere,  17   Bcav.  421  ;  21 

246 ;  Aldridge  r.  Dunn,  7  lb.  249  ;  Denny  lb.   118;  Keith   v.   Wolf,  5    Bush  (Ky.), 

V.  Steakly,  2  Heisk.  (Tenn.)  156  ;  Taylor  646. 
V.  Hunter,  5  Humph.  (Tenn.)  569;  Clark 

VOL.  I.                          10  145 


199.] 


LIENS   FOR   PURCHASE   MONEY. 


by  the  deed  of  conveyance,^  or  by  a  separate  writing,^  or  from  the 
circumstances  of  the  case.^ 

A  lien  upon  land  conveyed  to  a  married  woman,  and  partly  paid 
for  by  her  out  of  her  own  funds,  has  been  regarded  as  waived  by 
taking  the  husband's  note  for  the  balance.* 

The  intention  to  waive  the  lien,  when  only  the  personal  obliga- 
tion of  the  vendee  is  taken  for  the  purchase  money,  may  be  shown 
by  an  express  agreement  of  the  parties,  or  by  any  expressions  in- 
consistent with  an  intention  to  continue  it.^ 


199.  The  lien  is  defeated  by  a  conveyance  by  the  vendee  to 
one  who  purchases  in  good  faith,  without  notice  of  the  lien.*^  It  is 
a  secret,  invisible  lien,  known  only  to  the  vendor  and  vendee,  and 
to  those  to  whom  they  may  have  communicated  the  fact  of  its  ex- 
istence.   "  To  the  world,"  says  Chief  Justice  Marshall,''  "  the  ven- 


1  Clarke  v.  Royle,  3  Sim.  499  ;  Buck- 
land  V.  Packndl,  13  Sim.  406. 

2  Dixon  V.  Gayfere,  supra. 

3  Earl  of  Jersey  v.  Briton  Ferry  Float- 
ing Dock  Co.  7  L.  R.  Eq.  409. 

■1  Cowl  V.  Varnum,  37  111.  181. 

5  Winter  v.  Lord  Anson,  1  S.  &  St. 
434,445;  Ex  parte  Parkes,  1  G.  &  J.  228. 

In  Iowa  it  is  provided  by  statute  that 
no  vendor's  lien  for  unpaid  purchase 
money  shall  be  recognized  or  enforced  in 
any  court  of  law  or  equity,  after  a  convey- 
ance by  the  vendee,  unless  such  lien  is  re- 
served by  conveyance,  mortgage,  or  other 
instrument  duly  acknowledged  and  re- 
corded, or  unless  such  conveyance  by  the 
vendee  is  made  after  suit  brought  by  the 
vendor,  his  executors,  or  assigns  to  enforce 
such  lien.     Sect.  1940,  Rev.  of  1873. 

In  Kentockt  it  is  provided  that  when 
any  real  estate  shall  be  conveyed,  and  the 
consideration,  or  any  part  thereof,  remains 
unpaid,  the  grantor  shall  not  have  a  lien 
for  the  same,  against  bond  Jide  creditors 
and  purchasers,  unless  it  is  stated  in  the 
deed  what  part  of  the  consideration  re- 
mains unpaid.  Gen.  Stat,  of  Ky.  1873, 
p.  589,  §  24. 

As  to  what  is  a  sufficient  reservation, 
under  this  provision,  see  Keith  v.  Wolf, 
5  Bush  (Ky.),  646  ;  Ledford  v.  Smith,  6 
lb.  129. 

146 


When,  by  mistake,  reservation  was  not 
made.  Phillips  v.  Skinner,  6  Bush  (Ky.), 
662. 

Notice  to  the  purchaser  in  any  other 
way,  that  the  purchase  money  is  not  paid, 
will  not  affect  him.  Chapman  v.  Stock- 
well,  18  B.  Mon.  650. 

The  amount  must  be  expressly  stated. 
Taylor  v.  Ford,  1  Bush,  44 ;  Maupin  v. 
M'Cormick,  2  Bush,  206  ;  Grilton  v.  Mc- 
Donald, 3  Met.  (Ky.)  252  ;  Cottman  v. 
Martin,  1  lb.  563.  A  covenant  to  pay 
all  the  vendor's  debts,  the  amount  of  which 
is  not  stated,  is  not  a  sufficient  reserva- 
tion.    Long  V.  Burke,  2  Bush,  90. 

6  Cator  V.  Earl  of  Pembroke,  1  Bro.  C. 
C.  302 ;  Houston  v.  Stanton,  11  Ala.  412 
Adams  v.  Buchanan,  49  Mo.  64 ;  Moshier 
V.  Meek,  80  111.  79 ;  Fisk  v.  Potter,  2  Abb 
App.  Dec.  (N.  Y.)  138,  per  Potter,  J. 
Bayley  v.  Greenleaf,  7  Wheat.  46,  in  which 
the  early  cases  are  examined,  and  the  dic- 
tum of  Sugden,  that  purchasers  are  bound 
although  they  had  no  notice,  is  declared 
not  to  be  justified  or  supported.  Mr.  Jus- 
tice Potter,  in  the  New  York  case  cited 
above,  says  of  the  doctrine  declared  by 
Sugden,  that  it  had  never  been  held  by 
any  court  of  authority,  within  the  limits 
of  his  research. 

^  Bayley  v.  Greenleaf,  supra. 


THE   vendor's   implied   LIEN.  [§  200. 

dee  appears  to  hold  the  estate  divested  of  any  trust  whatever  ; 
and  credit  is  given  to  him,  in  the  confidence  that  the  property  is 
his  own  in  equity,  as  well  as  law.  A  vendor  relying  upon  this 
lien  ought  to  reduce  it  to  a  mortgage,  so  as  to  give  notice  of  it  to 
the  world.  If  he  does  not,  he  is,  in  some  degree,  accessory  to  the 
fraud  committed  on  the  public,  by  an  act  which  exhibits  the  ven- 
dee as  the  complete  owner  of  an  estate  on  which  he  claims  a  secret 
lien.  It  would  seem  inconsistent  with  the  principles  of  equity, 
and  with  the  general  spirit  of  our  laws,  that  such  a  lien  should  be 
set  up  in  a  court  of  chancery,  to  the  exclusion  of  bond  fide  cred- 
itors." 

Moreover,  to  allow  this  latent  and  unwritten  lien  to  prevail 
against  purchasers  and  mortgagees,  who  in  good  faith  invest  their 
money  upon  the  faith  of  an  unincumbered  title  of  record,  would 
be  to  discredit  and  subvert  the  system  of  registration  which  in  this 
country  is  universally  adopted  as  the  evidence  and  safeguard  of 
every  title. 

200.  Or  by  a  mortgage.  —  A  vendor's  lien  having  no  validity, 
as  against  a  purchaser  for  value  without  notice,  it  has  no  validity 
against  one  who  takes  a  mortgage  as  security  for  a  debt  contracted 
at  the  time,  for  he  is  then  a  purchaser.^  Even  an  equitable 
mortgage  —  one  for  instance  arising  by  means  of  a  mere  contract 
for  a  mortgage,  and  nothing  more,  or  by  a  deposit  of  title  deeds, 
where,  as  in  England,  such  a  deposit  creates  an  equitable  mort- 
gage —  may  be  entitled  to  priority  over  the  lien,  although  the  lien 
be  prior  in  time.  In  contests  between  persons  having  only  equi- 
table interests,  priority  of  time  is  the  ground  of  preference  last 
resorted  to,  or  in  other  words,  only  when  their  equities  are  in  all 
other  respects  equal ;  and  the  circumstance  that  the  equitable 
mortgagee  has  possession  of  the  title  deeds  has  been  held  to  give 
him  the  better  equity,  and  to  make  the  maxim,  "  Qui  prior  est 
tempore,  potior  est  jure,"  inapplicable.^ 

1  Short  V.  Battle,  52  Ala.  456  ;  Grown-  which  they  declared,  in  the  most  solemn 
ing  V.  Behn,  10  B.  Mon.  (Ky.)  383.  and  deliberate  manner,  both  in  the  body 

2  Rice  V.  Rice,  2  Drew.  73,  per  Vice  and  by  a  receipt  indorsed,  that  the  whole 
Chancellor  Kindersley  :  —  purchase  money  had  been  duly  paid.  They 

"  The  vendors,  when  they  sold  the  es-  might  still  have  required  that    the  title 

tate,  chose  to  leave  part  of  the  purchase  deeds  should  remain  in  their  custody,  with 

money  unpaid,  and  yet  executed  and  de-  a  memorandum,  by  way  of  equitable  mort- 

livered  to  the  purchaser  a  conveyance,  by  gage,  as  a  security  for  the  unpaid  purchase 

147 


201.] 


LIENS   FOR   PURCHASE    MONEY. 


But  the  lien  will  still  attach  to  the  equity  of  redemption  of  the 
vendee,  and  upon  a  foreclosure  of  the  mortgage  the  lien  may  be 
enforced  upon  the  surplus.^  If  the  mortgage  be  given  merely  to 
secure  a  preexisting  debt,  it  will  not  prevail  against  the  lien.^ 
The  mortgagee  is  not  then  a  purchaser  in  good  faith  for  value. 

When  the  consideration  of  a  mortgage  is  in  part  a  debt  already 
due,  and  in  part  a  new  debt  created  at  the  date  of  the  mortgage, 
the  mortgage  will  be  protected  against  the  lien  only  as  to  the 
new  debt.^ 


201.  When  a  judgment  lien  takes  precedence.  —  A  judgment 
creditor,  who  advances  his  money  on  the  faith  of  an  unincum- 
bered title,  is  regarded  as  a  quasi  purchaser  for  a  valuable  con- 
sideration, and  having  no  notice  of  the  lien,  his  judgment  lien  is 
sustained  against  the  lien  of  the  vendor.^ 

Neither  is  the  lien  allowed  to  affect  the  rights  of  the  vendee's 
creditors  who  have  attached  the  land  without  notice  of  the  lien.^ 

But  on  the  other  hand  it  is  held  that  a  judgment  creditor  takes 
only  what  belonged  to  his  debtor,  and   takes,   subject  to  all  the 


money,  and  if  they  had  done  so,  they 
would  have  been  secure  against  any  sub- 
sequent equibjble  incumbrance;  but  that 
they  did  not  choose  to  do,  and  the  deeds 
were  delivered  to  the  purchaser.  Thus 
they  voluntarily  armed  the  purchaser  with 
the  means  of  dealing  with  the  estate  as 
the  absolute,  legal,  and  equitable  owner, 
free  from  every  shadow  of  incumbrance 
or  adverse  equity.  In  truth,  it  cannot  be 
said  that  the  purchaser,  in  mortgaging 
the  estate  by  the  deposit  of  the  deeds,  has 
done  the  vendors  any  wrong,  for  he  has 
only  done  that  which  the  vendors  author- 
ized and  enabled  him  to  do.  The  defend- 
ant, who  afterwards  took  a  mortgage,  was 
in  effect  invited  and  encouraged  by  the 
vendors  to  rely  on  the  purchaser's  title. 
They  had  in  effect,  by  their  acts,  assured 
the  mortgagee  that,  as  far  as  they  were 
concerned,  the  mortgagor  had  an  absolute 
indefeasible  title  both  at  law  and  in  eq- 
uity." And  see  Wilson  v.  Keating,  4  De 
G.  &  J.  588. 
1  Brown  v.  Porter,  2    Mich.  N.  P.  12. 

148 


See  Arnold  v.  Patrick,  6  Paige  (N.  Y.), 
310. 

-  Chance  v.  McWhorter,  26  Ga.  315. 

3  Pepper  v.  George,  51  Ala.  190. 

In  this  case  the  court  held,  partly  with 
reference  to  the  terms  of  a  statute,  that 
a  mortgage  given  in  security  of  a  pre- 
existing debt,  although  the  time  of  pay- 
ment is  extended  and  a  pending  suit  is 
discontinued,  does  not  constitute  the  mort- 
gagee a  purchaser  for  value,  so  as  to  enti- 
tle him  to  protection  against  an  outstand- 
ing lien. 

■*  Bayley  v.  Greenleaf,  7  Wheat.  46 ; 
Hulett  V.  Whipple,  58  Barb.  (N.  Y.)  224; 
Taylor  V.Baldwin,  10  lb.  626;  Cook  v. 
Banker,  50  N.  Y.  655 ;  Robinson  v.  Wil- 
liams, 22  N.  Y.  380;  Cook  v.  Kraft,  3 
Lans.  (N.  Y.)  512;  Johnson  v.  Cawthorn, 
1  Dev.  &  B.  (N.  C.)  Eq.  32;  Aldridge  v. 
Dunn,  7  Blackf.  (lud.)  249;  Webb  v. 
Robinson,  14  Ga.  216  ;  Gann  v.  Chester, 
5  Yerg.  (Tenn.)  205. 

^  Allen  V.  Loring,  34  Iowa,  499  ;  Porter 
V.  City  of  Dubuque,  20  Iowa,  440 ;  Ad- 
ams V.  Buchanan,  49  Mo.  64. 


THE   vendor's   implied   LIEN.  [§§  202-204. 

equities  which  exist  in  favor  of  the  vendor.^  The  judgment  cred- 
itor is  said  to  have  only  an  equity,  and  the  vendor's  equity,  being 
the  better  equity,  must  prevail. 

202.  The  vendee's  assignee  in  bankruptcy  takes  the  prop- 
erty subject  to  the  lien,  for  it  is  a  settled  principle  that  he  takes 
only  the  rights  and  estate  of  the  bankrupt,  and  subject  to  all  the 
equities  which  affected  him.^  An  assignee  of  the  vendee,  under  a 
general  assignment  for  the  benefit  of  creditors,  will  also  take  sub- 
ject to  the  vendor's  lien.^  After  such  assignment  in  bankruptcy, 
or  for  the  benefit  of  creditors,  a  bill  to  enforce  the  lien  should  be 
brought  against  the  assignee  and  not  against  the  bankrupt. 

203.  A  legal  lien  accruing  at  same  time  preferred.  —  As  be- 
tween this  latent  lien  in  equity,  and  a  legal  lien  by  mortgage 
arising  at  the  same  time,  the  latter  will  prevail.*  Such  a  mort- 
gage may  attach  to  the  property  the  moment  the  land  is  conveyed 
to  the  mortgagee,  as  for  instance  when  a  railroad  company  has 
executed  and  recorded  a  mortgage  of  all  its  real  estate,  both  that 
which  it  holds  at  the  time  and  that  which  it  may  acquire  there- 
after ;  it  is  well  settled  that  the  mortgage  attaches  to  the  after 
acquired  lands  as  soon  as  the  conveyance  is  made  to  the  company. 
The  mortgage  lien  is  preferred  to  the  vendor's  lien  for  the  pur- 
chase mone}'  in  such  case.  Where  the  conveyance  in  such  case 
was  made  by  an  agent  of  the  company,  who  knew  of  the  existence 
of  the  mortgage,  there  was  a  further  reason  for  rejecting  his  claim 
of  a  lien,  for  he  was  claimed  to  have  waived  it  as  against  the  mort- 
gage.^ 

204.  Purchaser  with  notice.  —  Any  one  acquiring  an  interest 
in  land  affected  by  a  vendor's  lien  with  notice  of  its  existence 
takes  it  subject  to  the  lien.     Upon  this  point  Lord  Eldon  said  :  ^ 

1  Walton  V.  Hargroves,  42  Miss.  18;  Walton  v.  Hargroves,42  Miss.  18;  Pearce 
Thompson  v.  McGill,  1  Freem.  (Miss.)  v.  Foreman,  29  Ark.  563;  Warren  v. 
401 J  Lewis  v.  Caperton,  8  Gratt.  (Va.)  Fenn,  28  Barb.  (N.  Y.)  333  ;  Green  v.  De- 
148.  moss,  10  Humph.  (Tenn.)  371  ;  Brown  v. 

2  Bowles  V.  Rogers,  G  Ves.  95  ;  Ex  parte  Vanlier,  7  lb.  239. 

Peake,    1    Madd.    346  ;  In   re   Perdue,    2  ^  Fisk  v.  Potter,  2  Abb.  App.  Dec.  (N. 

Bank.  Reg.  183  ;  and  see  Corlies  v.  How-  Y.)  138. 

land,  26  N.  J.  Eq.  311.  5  Yhk  v.  Potter,  supra. 

3  Fawell  V.  Heelis,  Arab.  724;  Shirley  ^  Mackreth  v.  Symmons,  15  Ves.  329; 
r.  Sugar  Refinery,  2  Edw.   (N.  Y.)  505;  Carr  v.  Hobbs,  11    Md.   285.    And  see, 

149 


§  205.]  LIENS   FOR   PURCHASE    MONEY. 

"  There  is  no  doubt  that  a  third  person,  having  full  knowledge  that 
the  other  got  the  estate  without  payment,  cannot  maintain,  that 
though  a  court  of  equity  will  not  permit  him  to  keep  it,  he  may 
give  it  to  another  person  without  payment." 

The  notice  may  be  actual,  as  where  the  purchaser  is  informed  of 
the  fact  of  the  purchase  by  the  parties,^  or  constructive,  through 
the  pendency  of  a  suit  to  enforce  the  lien,^  or  through  recitals  in  a 
deed  under  which  the  purchaser  claims.  He  is  bound  by  any  no- 
tice which  would  put  a  reasonable  man  upon  inquiry.^  If  he  has 
notice  that  some  part  of  the  purchase  money  is  unpaid,  it  is  incum- 
bent upon  him  to  ascertain  how  much  remains  unpaid,  and  he  is 
chargeable  with  notice  of  tlie  lien  whatever  its  extent  may  be.* 

The  purchaser  must  pay  a  new  consideration  to  entitle  him  to 
the  position  of  an  innocent  purchaser  for  value,  and  to  defend 
against  the  equitable  lien  of  the  vendor.^ 

205.  Notice  by  recitals  in  deed.  —  When  the  deed,  under 
which  the  vendee  holds,  shows  by  its  recitals  that  the  purchase 
money  has  not  been  paid,  although  the  deed  be  not  recorded,  a 
purchaser  from  him  is  affected  with  notice  of  tlie  outstanding  ven- 
dor's lien ;  for  he  can  only  make  title  by  a  deed  which  leads  him 
to  this  fact,  and  he  must  therefore  be  presumed  to  be  cognizant 
of  it.6 

The  fact  that  the  vendee,  in  his  deed  conveying  the  land  to  an- 
other, recites  his  purchase  of  the  estate  from  the  first  vendor,  does 
not  affect  the  purchaser  with  notice,  if  the  recital  does  not  show 
that  the  estate  was  not  paid  for."     Nor  does  the  fact  that  the  ven- 

also,    Corlies   v.  Rowland,   26  N.   J.   Eq.  *  Baum  v.  Grigsby,  21  Cal.  176;  Man- 

311 ;  Dodge  v.  Evans,  43  Miss.  570;  Mer-  ly  v.  Slason,  21  Vt.  271. 

ritti;.  Wells,  18  Ind.  171;  Webb  v.  Eob-  ^  Perkins    v.   Swank,   43    Miss.    349  ; 

inson,   14  Ga.   216;  Burt  v.   Wilson,   28  Walton     v.     Hargroves,    42     Miss.     18; 

Cal.  632  ;  Shall  v.  Biscoe,  18  Ark.   142  ;  Chance  v.  McWhorter,  26  Ga.  315. 

Bulger  V.  Holly,  47  Ala.  453  ;  Sampley  v.  '^  Cordova  v.  Hood,  17  Wall.  1  ;  Masich 

Watson,  43  Ala.  377  ;  Gordon  w.'  Bell,  50  v.  Shearer,  49  Ala.  226  ;  Tiernan  v.  Thur- 

Ala.  213  ;  Champion  v.  Brown,  6  Johns,  man,  14  B.  Mon.  (Ky.)  277  ;  Thornton  v. 

(N.  Y.)  Ch.  398.  Knox,  6  lb.  74;  Daughaday   v.  Paine,  6 

^  Wilson  w.  Lyon,  51  III.  166.  Minn.   443;    McEimmon    v.    Martin,    14 

'  Tharpe  v.  Dunlap,  4  Heisk.   (Tenn.)  Tex.  318;  McAlpine  v.  Burnett,  23  Tex. 

674;    Tiernan  v.   Thurman,   14   B.  Mon.  649. 

(Ky.)  277.  7  Catori).  Earl  of  Pembroke,  1  Bro.  C. 

3  Briscoe   v.   Bronaugh,    1    Tex.    326;  C.  302  ;  Eyre  w.  Sadleir,    14lr.  Ch.  119; 

Parker  v.  Eoy,  43  Miss.   260;  Autrey  v.  15  lb.  1. 

Whitmore,  31  Tex.  623. 
160 


THE  vendor's  implied  LIEN.  [§§  206,  207. 

dor  remains  in  possession  of  the  land  as  lessee  affect  the  purchaser 
with  notice  that  the  purchase  money  remains  unpaid.^ 

The  fact  that  a  purchaser  has  the  conveyance  made  to  another 
person,  as  for  instance  his  wife  or  daughter,  but  gives  his  own 
notes  for  the  purchase  money,  does  not  make  any  difference  with 
enforcement  of  the  lien.^  Such  third  person  is  a  mere  volunteer, 
not  a  purchaser  without  notice,  and  for  value.  He  is  but  a  recip- 
ient of  the  title,  and  there  is  no  reason  why  the  lien  should  not 
exist  against  him. 

206.  Defence  of  purchase  without  notice.  —  A  purchaser 
who  defends  against  the  lien,  on  the  ground  that  he  purchased  for 
value  without  notice,  should  in  his  answer  briefly  state  the  deed  of 
purchase,  the  date,  the  parties,  contents,  and  consideration  paid, 
and  that  he  is  seised  in  fee  and  possession,  with  a  distinct  aver- 
ment that  the  consideration  was  paid  in  good  faith,  and  was  actual, 
independent  of  the  recital  of  the  deed.^  He  should  deny  notice 
previous  to  and  down  to  the  time  of  paying  the  money  and  the 
delivery  of  the  deed  ;  and  if  notice  be  specially  charged,  he  should 
deny  all  the  circumstances  referred  to  from  which  notice  can  be 
inferred.  Whether  notice  be  charged  in  the  bill  or  not,  it  should 
be  positively  denied  in  the  answer. 

This  defence  is  not  available  to  the  purchaser,  if  the  purchase 
money  has  not  been  actually  paid  before  notice  was  received.* 

207.  Waived  by  taking  distinct  security.  —  A  vendor's  lien 
is  lost  by  taking  a  mortgage,  or  other  independent  security  for 
the  purchase  money ,^  unless  there  be  an  express  agreement  that  it 

1  White  V.  Wakefield,  7  Sim.  401.  Ohio,  428;  Richardson  v.  Ridgely,  8  Gill 

2  Doyle  V.  Orr,  51  Miss.  229;  Davis  v.  &,  J.  (Md.)  87;  Louis  v.  Covilland,  21 
Pearson,  44  Miss.  508;  Russell  i;.  Watt,    Cal.    178;   Denny  v.   Steakly,   2   Heisk. 

41  Miss.  609  ;  Upshaw  v.  Hargrove,  6  S.  (Tenn.)  156  ;  Adams  v.  Buchanan,  49  Mo. 
&  M.  (Miss.)  286  ;  Marsh  v.  Turner,  4  Mo.  64  ;  Durette  v.  Briggs,  47  Mo.  356  ;  Car- 
253  ;  Taylof  v.  AUoway,  3  Litt.  (Ky.)  rico  v.  Farmers'  &  Merchants'  XI.  Bank, 
216.  33  Md.  235  ;  Dudley  v.  Dickson,  14  N.  J. 

3  Pearce  v.  Foreman,  29  Ark.  563,  and  Eq.  252  ;  Van  Doren  v.  Todd,  2  Green's 
cases  cited;  Wells  v.  Morrow,  38  Ala.  Ch.  (N.  J.)  397;  BrinkerhofF  v.  Van- 
125,  128,  and  cases  cited.  sciven,  3  lb.  251  ;  Dibblee  v.  Mitchell,  15 

*  Campbell  v.  Roach,  45  Ala.  667.  Ind.  435 ;   Parker  County  v.   Sewell,  24 

6  Nairn  v.  Prowse,  6  Ves.  752 ;  Follett  Tex.   239  ;    Brown   v.   Christie,  35    Tex. 

V.   Reese,   20   Ohio,  546;    McGonigal    v.  689;  McDonough  r.  Cross,  40  Tex.  251  ; 

Plummer,  30  Md.  422  ;  Fonda  v.  Jones,  Kirkham  v.  Boston,  67  111.  599  ;  McLau- 

42  Miss.   792 ;   Mayham  v.'  Coombs,   14  rie  v.  Thomas,  39  111.  291  ;  Richards  v. 

151 


§  207.] 


LIENS   FOR   PURCHASE   MONEY. 


shall  not  have  this  effect.^  Taking  a  mortgage  upon  tlie  same 
property  would  obviously  exclude  the  holding  of  a  lien  upon  it  at 
the  same  time,^  and  if  a  mortgage  be  taken  upon  a  part  of  the 
estate  purchased,  the  inference  is  that  it  was  not  intended  that  the 
rest  of  it  should  be  affected  by  the  lien.^  If  a  mortgage  be 
taken  upon  another  estate  of  the  vendee,  the  obvious  intention  of 
burdening  one  estate  is  that  the  other  shall  remain  free  and  unin- 
cumbered.^ The  same  inference  would  be  drawn  from  the  taking 
of  any  pledge  for  the  purchase  money  ;  or  from  taking  the  per- 
sonal obligation  of  some  other  person  alone,  or  in  addition  to  that 
of  the  vendee.^ 

A  vendor,  who  has  taken  other  land  conveyed  to  him  with  cove- 
nants of  warranty  by  the  vendee,  is  deemed  to  have  waived  his 
lien.^     The  delivery  of  such  other  deed  in  escrow  is  a  waiver  of 


Laming,  27  111.  431 ;  Warner  v.  Scott,  6.3 
111.  368  ;  Fish  v.  Rowland,  1  Paige  (N. 
Y.),  20;  Vail  v.  Foster,  4  N.  Y.  312. 

1  Daughaday  v.  Paine,  6  Minn.  443. 

2  Mattix  V.  Weand,  19  Ind.  151  ;  Cam- 
den V.  Vail,  23  Cal.  633 ;  Little  v.  Brown, 
2  Leigh  (Va.),  353  ;  Young  v.  Wood,  11 
B.  Mon.  (Ky.)  123  ;  Shelby  v.  Perrin,  18 
Tex.  515. 

In  Pease  v.  Kelly,  3  Oreg.  417,  the 
court  said  that  both  liens  could  not  exist 
at  the  same  time,  and  that  the  mortgage 
lien  being  the  more  definite  and  the  higher 
security,  repelled  the  equitable  lien.  But 
see  contra,  Boos  v.  Ewing,  17  Ohio,  500; 
Anketel  v.  Converse,  17  Ohio  St.  11  ;  Staf- 
ford V.  Van  Rensselaer,  9  Cow.  (N.  Y.) 
316  ;  Wasson  v.  Davis,  34  Tex.  159  ;  Lin- 
ville  V.  Savage,  58  Mo.  248 ;  Morri  v. 
Pate,  31  Mo.  315. 

3  Capper  v.  Spottiswoode,  Tamlyn,  21  ; 
Bond  V.  Kent,  2  Vern.  281  ;  Brown  v.  Gil- 
man,  4  Wheat.  256  ;  Phillips  v.  Saunder- 
son,  1  Sm.  &  M.  (Miss.)  Ch.  462;  Fisk 
V.  Howland,  1  Paige  (N.  Y.),  30;  Hadley 
V.  Pickett,  25  Ind.  450 ;  Dudley  v.  Dick- 
son, 14  N.  J.  Eq.  252. 

But  when  the  purchase  money  does  not 
consist  of  one  entire  liability,  but  of  sev- 
eral distinct  liabilities,  accruing  severally, 
and  the  corresponding  liens  are  not  divisi- 
ble merely,  but  are  essentially  divided  and 

152 


distinct,  it  has  been  held  that  the  taking 
of  security  for  one  lien  does  not  waive 
another  lien.  De  Forest  v.  Holum,  38 
Wis.  516. 

■*  Sir  Wm.  Grant,  in  Nairn  v.  Prowse, 
6  Ves.  752. 

s  Wilson  V.  Graham,  5  Munf.  (Va.) 
297  ;  Williams  v.  Roberts,  5  Ohio,  35  ; 
Campbell  v.  Henry,  45  Miss.  326  ;  Boon 
V.  Murphy,  6  Blackf.  (Ind.)  273;  Carrico 
V.  Farmers'  Bank,  33  Md.  235  ;  McGoni- 
gal  V.  Plummer,  30  Md.  422 ;  Boynton  v. 
Camplin,  42  111.  57;  Vail  v.  Foster,  4  N. 
Y.  312;  Baum  v.  Grigsby,  21  Cal.  172; 
Schwarz  v.  Stein,  29  Md.  112  ;  Sanders  v. 
McAff'ee,  41  Ga.  684 ;  Hummer  v.  Schott, 
21  Md.  307  ;  Fonda  v.  Jones,  47  Miss.  792 ; 
Durette  v.  Briggs,  47  Mo.  356 ;  Sears  v. 
Smith,  2  Mich.  243  ;  Yaryan  v.  Shriner, 
26  Ind.  364;  Johnson  v.  Sugg,  21  Miss. 
346;  Manly  v.  Slason,  21  Vt.  271;  Can- 
non V.  Bonner,  38  Tex.  487  ;  Carnes  v. 
Hubbard,  10  Miss.  (2  S.  &  M.)  108.  Con- 
tra, McCIure  v.  Harris,  12  B.  Mon.  (Ky.) 
261.  And  so  not  waived  by  taking  a  guar- 
anteed note,  Burrus  v.  Roulhac,  2  Bush 
(Ky.),  39  ;  Tiernan  v.  Thurman,  14  B. 
Mon.  (Ky.)  277. 

6  Hare  v.  Van  Deusen,32  Barb.  (N.  Y.) 
92.  See,  however,  Bishop  v.  Snell,  37 
Ala.  90. 


THE    vendor's   implied   LIEN.  [§  208. 

the  lien  also,  and  it  is  not  revived  by  the  failure  of  the  depositary, 
wrongfully  or  otherwise,  to  deliver  the  deed  to  the  vendor. ^ 

\yhen  the  vendor  has  retained  the  legal  title  until  part  of  the 
payments  have  been  made,  or  the  deed  has  remained  in  escrow  by 
agreement  until  the  first  instalment  has  been  met,  the  delivery  of 
the  deed  in  reliance  upon  the  purchaser's  notes  is  a  waiver  of  the 
lien.2 

When  the  vendor  has  surrendered  an  express  lien,  which  was  in 
effect  a  mortgage,  and  received  part  payment,  and,  for  a  part,  ne- 
gotiable securities,  he  is  regarded  as  having  waived  his  lien  for 
this  part.^ 

208.  Though  the  security  prove  inadequate.  —  When  inde- 
pendent security  has  been  taken,  there  is  an  implied  waiver  of 
the  lien,  although  the  security  prove  to  be  inadequate  "^  or  wholly 
void.^  The  lien  once  having  been  waived  by  the  vendor,  a  court 
of  equity  cannot,  as  a  general  rule,  revive  it.^ 

But  here  the  authorities  are  not  in  harmony ;  for  where  a 
mortgage  had  been  taken  of  the  land  to  secure  the  purchase 
money,  but  was  void  for  the  reason  that  the  husband  had  not 
joined  in  the  execution  of  it,  the  lien  was  sustained  ; "'  and  where 
the  vendor  had  been  induced  by  the  fraudulent  misrepresentations 
of  the  vendee  to  take  the  security,  it  was  held  he  might  still 
rely  upon  the  lien  ;^  and  so  where  the  mortgage  was  void  for  mis- 
description or  ambiguity.^ 

It  has  been  held  that  the  vendor  does  not  waive  his  security  by 
taking,  through  the  fraud  of  the  purchaser,  ^^  or  without  fraud  on 
his  part,^^  worthless  security  for  the  purchase  money.  But  on  the 
other  hand  it  has  been  held,  that  the  acceptance  of  a  deed  of  other 
lands  in  payment  of  part  of  the  purchase  price  is  a  waiver  of  the 
lien,  although  the  title  to  such  other  lands  proves  to  be  bad.^^ 

1  Coit  V.  Fougera,  36  Bavb.  (N.  Y.)  »  Tobey  u.  McAllister,  9  Wis.  463  ;  Coit 
195.  V.  Fougera,  36  Barb.  (N.  Y.)  195. 

2  Brown  v.  Oilman,  4  Wheat.  256.  ^  Davis  v.  Cox,  6  Ind.  481. 

8  Porter  v.  Dubiuiue,  20  Iowa,  440.  !<>  Skinner  v.  Purncll,  52  Mo.  96 ;  Crip- 

*  Hunt  V.  Waterman,  12  Cal.  301,  pen  v.  Heermance,  9  Paige  (N.  Y.),  211 ; 

5  Camden  r.  Vail,  23  Cal.  633.  and  see  Dubois  v.  Hull,  43  Barb.  (N.  Y.) 

G  Mayhem  t-.  Coombs,   14    Ohio,   428;  26;    Burger  v.  Hughes,  5  Hun   (N.  Y.), 

Burger  v.  Potter,  32  111.  66.  180. 

■?  Haugh  V.  BIythe,  20  Ind.  24  ;  Fowler  ii  Duke  v.  Balme,  16  Minn.  306. 

V.  Rust,  2  A.  K.  Marsh.  (Ky.)  294.  12  Willard  v.  Reas,  26  Wis.  540. 

153 


§§  209,  210.]  LIENS   FOR  PURCHASE   MONEY. 

209.  Whether  taken  at  the  time  or  subsequently.  —  The 
effect  of  taking  security  is  generally  held  to  be  the  same,  whether 
taken  at  the  time  of  the  conveyance  or  subsequently.^  But  the 
waiver  may  in  either  case  be  avoided  by  an  express  agreement 
that  the  lien  shall  remain,  notwithstanding  the  security .^  When 
there  is  no  security,  the  burden  is  upon  the  vendee  to  show  that 
the  lien  does  not  exist ;  but  after  the  taking  of  security,  aside 
from  the  personal  obligation  of  the  purchaser,  the  burden  is  shifted 
and  is  upon  the  vendor  to  show  that  the  lien  has  not  been 
waived.^ 

There  is  no  waiver,  however,  until  the  security  is  actually 
taken,  although  there  be  an  agreement  to  receive  it.^ 

210.  The  taking  of  security  is  only  evidence  of  a  waiver,  not 
conclusive  of  it.  —  The  taking  of  security  for  the  purchase  money 
has  been  deemed  by  some  authorities  as  only  presumptive  evi- 
dence of  a  waiver  of  the  lien.^  Although  the  security  be  what  is 
termed  by  the  authorities  an  independent  security, —  such  as  a 
mortgage  on  other  property,  a  pledge,  or  the  negotiable  note  of 
a  third  party  indorsed  by  the  vendee,  —  it  is  only  evidence  of 
an  intention  to  waive  the  lien  rights,  and  not  conclusive  of  such 
intention.*^  The  taking  of  security  is  not  a  waiver  of  the  lien, 
unless  the  nature  of  the  security  be  such  that  it  evinces  an  inten- 
tion to  waive  it ;  ">  and,  therefore,  a  mortgage  given  expressly  in 
aid  of  the  lien  has  been  held  not. to  be  a  waiver  of  it.^ 

1  But  contra,  held  when  the  security  was  assumption,  that  taking   an  independent 

voluntarily  given  not  in  pursuance  of  the  security  is  inconsistent  with  an  intention 

original  agreement.     Van  Doren  v.  Todd,  to  retain  the  lien,  is  merely  gratuitous  ; 

2  Green  (N.  J.)  Eq.  397.  for  the  parties  might,  in  all  reason,  just  as 

-  Daughaday  v.  Paine,  6   Minn.  443  ;  well  be  supposed  to  have  intended  the  se- 

Yaryan  v.   Shriner,  26  Ind.  364 ;  Boone  curity  to  cumulate."     Kauffelt  v.  Bower, 

V.  Murphy,  6  Blackf.  (Ind.)  272.  7  S.  &  E.  (Pa.)  64,  77. 

3  Bradford  v.  Marvin,  2  Fla.  463.  6  Lavender  v.  Abbott,  30  Ark.  172  ;  and 

*  Jones  V.  Vantress,  23  Ind.  533;  Dun-  see  2  Story's  Eq.  Juris.  §  1226;  De  For- 

lap  v.  Burnett,  13  Miss.  702.  est  v.   Holum,  38  "Wis.  516;    Sanders  v. 

5  Saunders  v.  Leslie,  2  Ba.  &  B.  515  ;  McAfFee,  41   Ga.  684;    Fonda    v.  Jones, 

Cordova  v.  Hood,  17  Wall.  1,  and  cases  42  Miss.  792. 

cited  ;  Dibblee  v.  Mitchell,  15  Ind.  435.  "  Corlies  v.  Howland,  26  N.  J.  Eq.  311 ; 

Chief  Justice  Gibson,  speaking   of  the  Hallock  v.  Smith,  3  Barb.  (N.  Y".)  267  ; 
circumstances  which    are    held   to   be   a  Dubois  v.  Hull,  43  lb.  26 ;  and  see  Chris- 
waiver  of  the  lien,  says  they  are  so  purely  tian  v.  Austin,  36  Tex.  540. 
arbitrary,  that  the  mind  is  often  puzzled  ^  Emison  v.  Whittlesey,  55  Mo.  254. 
to  find  the  reason  of  them.     "  Thus  the 

154 


THE   vendor's   implied   LIEN.  [§§  211,  212. 

It  is  said  that  when  it  is  doubtful  whether  the  security  taken 
should  amount  to  a  waiver,  the  lien  should  be  preserved. ^ 

The  effect  of  taking  independent  security  may  be  controlled 
by  express  agreement  that  the  lien  shall  not  be  waived  thereby  ; 
or  ma}^  be  controlled  by  expressions  which  negative  any  intention 
to  abandon  it.^ 

An  express  agreement  that  the  lien  shall  be  retained,  notwith- 
standing other  security  be  given  for  the  debt,  may  be  made  by  a 
married  woman,  when  the  land  is  conveyed  to  her,  and  becomes 
her  separate  estate.^ 

211.  The  vendor  may  be  estopped  to  claim  the  lien  by  rea- 
son of  having  induced  another  to  purchase  the  property  as  unin- 
cumbered, upon  the  representation  that  the  lien  no  longer  existed, 
or  would  not  be  claimed.'^  But  his  representations  will  not  affect 
the  lien  of  his  vendee,  who  makes  the  sale.^ 

3.    Who  may  enforce  the  Lien. 

212.  Whether  the  vendor's  lien  is  assignable  with  the  debt 
which  it  secures  is  a  question  upon  which  the  authorities  are  not 
agreed.*"  Generally  in  the  United  States  the  lien  is  considered 
personal  to  the  vendor,  and  not  assignable  except  under  peculiarly 
equitable  circumstances.^     Generally,  too,  where  the  lien  is  consid- 

1  Wilson  V.  Lyon,  51  111.  166;  Harris  taken.  The  case  was  before  the  N.  Y. 
V.  Hanks,  25  Ark.  510.  Superior  Court. 

2  Austen  v.  Halsey,  6  Ves.  475,  483 ;  *  Atkinson  v.  Lindsey,  39  Ind.  296  ; 
Elliot  V.  Edwards,  3  Bos.  &  P.  181 ;  Frail  Burns  v.  Taylor,  23  Ala.  255  ;  Thompson 
V.  Ellis,  16  Beav.  350.  v.  Dawson,  3  Head  (Tenn.),  384;  Reily 

8  Mears  v.  Kearney,  1  Abb.  (N.  Y.)  N.  v.  Miami  Exporting  Co.  5  Ohio,  333. 

C.  303.     The  note  given  for  the  land  was  ^  Rowland  v.  Day,  17  Ala.  681. 

as  follows ;    "  Ninety  days    after  date,  I  ^  By  the  English  authorities  the  lien  is 

promise  to  pay  to  the  order  of  Patrick  held  to  be  assignable  by  parol.    2  Dart's 

Kearney  one  hundred  and  seventy-five  dol-  V.  &  P.  (5th  ed.)  732,  and  cases  cited, 

lars,  at   the  Fifth    National   Bank,   New  ^  Not     assignable     in     the     following 

York,  and  for  the  payment   of  which  I  states :  — 

pledge  my  sole  and  separate  estate,  being  Arkansas  :  The  lien  is  an  individual 

514  West  43d   St.,  N.  Y.     Signed,  Cath-  equity,  and  does  not  pass  by  an  assign- 

erine  Kearney.     (Indorsed)  Patrick  Kear-  ment  of  the  debt.     Carlton  r.  Buckner,  28 

ney."     The  inference  ftom  the  statement  Ark.  66  ;  Hutton  i-.  Moore,  26  Ark.  396  ; 

and  opinion  in  the  case  is,  that  Patrick  Williams  v.  Christian,  23  Ark.  256;  Shall 

was  her  husband ;  at  any  rate  he  was  not  v.  Biscoe,    18    Ark.  162;    Jones  v.  Doss, 

the  vendor.     It  is  also  to  be  inferred  that  27  Ark.  518. 

the  premises  designated  in  the  note  were  But  this  rule  does  not  apply  when  the 

those  for  the  price  of  which  the  note  was  debt  has  been  assigned  merely  as  collat- 

155 


§  212.] 


LIENS   FOR   PURCHASE   MONEY. 


ered  a  personal  equity  it  is  not  assignable  even  by  express  lan- 
guage. It  is  strictly  personal  to  the  vendor  and  can  be  enforced 
only  by  hira.^ 

In  a  few  states,  however,  the  lien  is  regarded  as  assignable,  and 
the  assignee  of  the  debt  may  enforce  the  lien  in  his  own  name.^ 


eral.     Carlton   v.  Buckncr,  supra ;  Crow- 
ley V.  Riggs,  24  Ark.  563. 

California  :  Baum  v.  Grigsby,  21  Cal. 
172  ,  Lewis  v.  Covillaud,  21  lb.  178  ;  Wil- 
liams r.  Young,  21  lb.  227  ;  Ross  v.  Heint- 
zen,  36  Cal.  313. 

Georgia  :  Webb  v.  Robinson,  14  Geo. 
216  ;  Wellborn  v.  Williams,  9  Geo.  86. 

Illinois  :  Keith  v.  Horner,  32  111.  524  ; 
Carpenter  v.  Mitchell,  54  111.  126 ;  Rich- 
ards V.  Learning,  27  111.  431  ;  Moshier  v. 
Meek,  80  111.  79. 

Maryland  :  Dixon  v.  Dixon,  1  Md. 
Ch.  Dec.  220 ;  Inglehart  v.  Armiger,  1 
Bland  Ch.  519. 

Mississippi  :  The  lien  subsists  only  so 
long  as  the  vendor  is  himself  a  creditor. 
It  is  a  personal  equity  and  does  not  pass 
to  the  assignee  of  the  note  or  bond.  Pitts 
V.  Parker,  44  Miss.  247  ;  Skaggs  v.  Nel- 
son, 25  Miss.  89  ;  Briggs  v.  Hill,  6  How. 
(Miss.)  362;  Walker  v.  Williams,  30 
Miss.  165;  Strattou  v.  Gold,  40  lb.  778  ; 
Lindsey  v.  Bates,  42  Miss.  397 ;  some 
earlier  cases  to  the  contrary. 

Missouri  :  Adams  v.  Cowherd,  30  Mo. 
458,  dictum. 

New  York  :  Cannot  be  enforced  by 
an  assignee ;  White  v.  Williams,  1  Paige 
(N.  Y.),  502  ;  but  the  vendor  may  enforce 
it  after  an  assignment  when  he  continues 
to  have  a  pecuniary  interest  in  the  debt. 
Smith  V.  Smith,  9  Abb.  Pr.  N.  S.  420. 

Ohio  :  Brush  v,  Kinsley,  14  Ohio,  20  ; 
Horton  v.  Horner,  lb.  437 ;  Jackman  v. 
Hallock,  1  Ohio,  318;  Tiernan  v.  Beam, 
2  lb.  383. 

But  the  lien  has  been  held  to  pass  to 
a  devisee  of  the  notes.  Tiernan  v.  Beam, 
supra. 

Tennessee  :  Tharpe  v.  Dunlap,  4 
Heisk.  674,  and  cases  cited ;  Green  v. 
Demoss,  10  Humph.  371 ;  contra,  Norvcll 
V.  Johnson,  5  lb.  489. 

156 


1  Keith  V.  Horner,  32  111.  524  ;  Richards 
V.  Learning,  27  111.  431  ;  Hecht  v.  Sparks, 
27  Ark.  229  ;  In  re  Brooks,  2  Bank.  Reg. 
466. 

-  Assignable  in, — 

Alabama  :  The  transfer  of  the  notes 
carries  the  lien,  which  the  assignee  may 
enforce  in  his  own  name.  Wells  v.  Mor- 
row, 38  Ala.  125  ;  White  v.  Stover,  10 
Ala.  441  ;  Roper  v.  McCook,  7  Ala.  318. 

Indiana  :  Nichols  v.  Glover,  41  Ind. 
24  ;  Kern  v.  Hazlerigg,  11  Ind.  443  ;  Wise- 
man V.  Hutchinson,  20  Ind.  40;  Fisher  v. 
Johnson,  5  Ind.  492. 

Kentucky  :  Honore  v.  Bakewell,  6  B. 
Mon.  67  ;  Ripperdon  v.  Cozine,  8  lb.  465  ; 
Eubank  v.  Boston,  5  Mon.  286  ;  Johnson 
V.  Gwathmey,  4  Litt.  318  ;  Broad  well  v. 
King,  3  B.  Mon.  449. 

Texas  :  White  v.  Downs,  40  Tex.  225  ; 
Cordova  v.  Hood,  17  Wall.  1;  Watt  v. 
White,  33  Tex.  421  ;  Moore  v.  Raymond, 
15  Tex.  554. 

In  the  recent  case  of  Perkins  v.  Gibson, 
51  Miss.  699,  Mr.  Justice  Tarbell  said  :  — 

"  The  study  of  the  case  at  bar  has  in- 
duced, in  the  mind  of  the  writer,  these  in- 
dividual impressions  for  the  expression  of 
which  he  is  alone  responsible.  That  the 
reasons  assigned  against  the  transfer  or 
assignment,  by  contract,  of  the  vendor's 
lien  by  implication,  are  wholly  unsatisfac- 
tory to  him,  and  he  has  met  with  no  con- 
vincing argument  why  this  lien  should  not 
be  as  available  in  the  hands  of  assignees 
and  third  persons,  as  that  sub-vendees, 
with  notice,  take  the  land  subject  thereto. 
The  rule  in  Kentucky  is  sustained  by  the 
courts  of  a  minority  of  the  states,  it  is 
true,  but  the  present  impression  of  the 
writer  is  that  it  is  founded  in  the  better 
reason  and  equity."  The  case  was,  how- 
ever, decided  upon  other  grounds. 


THE   vendor's   LMPLIED   LIEN.  [§§  213,  214. 

But  the  lien  does  not  pass  when  the  note  for  the  purchase  price  is 
assigned  by  one  not  rightfully  holding  it.^  When  several  notes 
taken  for  the  purchase  money  are  assigned  at  different  times,  each 
note  is  pro  tanto  an  assignment  of  the  lien,^  and  an  assignment  of 
part  of  a  note  gives  a  ijro  tanto  interest  in  the  lien.^ 

The  prevailing  doctrine  therefore  is,  that  this  lien  is  implied 
only  in  favor  of  the  vendor  himself :  that  it  is  a  personal  equity. 
If  the  note  given  for  the  purchase  money  be  transferred,  it  does 
not  carry  -with  it  to  the  assignee  the  vendor's  lien,  so  that  he  can 
enforce  it  in  his  own  name.^  It  cannot  be  assigned  even  by  ex- 
press contract.'^     It  can  be  enforced  only  by  the  vendor  himself. 

It  cannot  be  invoked  in  favor  of  one  who  has  advanced  money 
to  a  purchaser,  with  which  to  pay  for  the  lands ;  or  by  one  of  two 
joint  purchasers  who  has  paid  the  whole  consideration.^ 

An  assignment  of  a  judgment  for  the  purchase  money  does  not 
pass  the  benefit  of  the  lien.'' 

213.  Subrogation  to  the  lien.  —  Where  the  lien  is  not  as- 
signable, even  by  express  contract,  there  can  of  course  be  no 
subrogation  of  another  to  the  position  by  the  vendor,  by  implica- 
tion of  law ;  as  for  instance  another  person  paying  the  debt  due 
the  vendor  for  purchase  money  is  not  subrogated  to  his  lien.^ 
But  the  rule  is  otherwise  where  the  lien  is  held  to  pass  by  assign- 
ment,^ and  a  purchaser  with  notice,  who  pays  off  a  lien,  is  sub- 
stituted to  the  rights  of  the  owner  as  against  another  incum- 
brancer.^*^ 

The  lien,  being  an  incident  of  the  debt,  cannot  be  established 
by  the  vendor  after  he  has  absolutel}^  transferred  the  debt  to 
another.  ^^ 

214.  When  notes  are  made  to  a  third  person  at  the  vendor's 
request.  —  But  it  is  held  that  the  lien  may  exist  in  favor  of  a 

1  Deibler  v.  Barwick,  4  Blackf.  (Ind.)  5  Keith  v.  Horner,  32  111.  524  ;  McLau- 

339.  lie  V.  Thomas,  39  111.  291. 

-  Davidson    v.    Allen,    36    Miss.  419  ;  ^  Brown  v.  Budd,  2  Ind.  442. 

Griggsby  v.  Hair,  2.5  Ala.  327.  '  Turner  v.  Homer,  29  Ark.  440. 

3  Thomast;.  Wyatt,5B.  Mon.(Ky.)  132.  »  Nichol  v.  Dunn,  25  Ark.  129. 

*  Marquat  v.  Marquat,  7  How.  (N.  Y.)  ^  Feet   v.    Beers,   4   Ind.   46  ;  Lusk   v. 

Pr.  417;  [Stansell    v.  Roberts,  13  Ohio,  Hopper,  3  Bush  (Ky.),  179. 

148;    Skaggs    v.   Nelson,    25    Miss.   88;  i'  Planters' Bank  i".  Dodson,   17  Miss. 

Richards  v.  Learning,  27  Bl.  431  ;  Wing  (9  S.  &  M.)  527. 

V.  Goodman,  75  111.  159.  "  Scott  i'.  Mann,  .36  Tex.  157. 

157 


§  215.]  LIENS   FOR   PURCHASE   MONEY. 

third  person  to  whom  the  vendee,  at  the  vendor's  request,  has 
agreed  to  pay  a  portion  of  the  purchase  money.^  It  may  exist  in 
favor  of  one  whose  land  has  been  sold  on  execution,  and  at  whose 
request  the  sheriff  has  given  credit  to  the  purchaser  for  so  much 
of  his  bid  as  was  not  required  to  satisfy  the  judgment.  The 
transaction  may  in  such  case  be  regarded  as  in  substance  to  that 
extent  a  sale  by  the  owner  through  the  sheriff,  and  the  sheriff's 
deed  to  that  extent  his  deed.^ 

The  lien  may  be  established  in  favor  of  one  who  is  beneficially 
the  owner  of  the  property  sold,  although  the  title  stands  in 
another  who  makes  the  conveyance  to  the  purchaser.^ 

In  a  recent  case  in  Mississippi,  it  appeared  that  the  owner  of 
land  was  indebted  to  another,  whom  he  authorized  verbally  to 
sell  the  land.  A  sale  was  made,  the  owner  conveying  the  land 
to  the  purchaser,  who  gave  his  note  for  the  amount  to  the  creditor, 
with  the  understanding  that  it  was  to  be  a  lien  upon  the  land.* 
Notwithstanding  the  rule  prevalent  in  this  state,  that  the  lien  is 
not  assignable  by  a  transfer  of  the  note  given  for  the  purchase 
money,  it  was  held  that  the  land  in  this  case  was  bound  by  the 
lien  in  favor  of  the  creditor,  to  whom  the  note  was  given. 

The  decision  was  based  upon  a  distinction  between  vendor  and 
grantor ;  and  it  was  considered  that  the  person  to  whom  the  note 
was  given  was,  under  the  circumstances,  really  the  vendor. 

215.  An  indorsement  of  the  note  "without  recoiirse  "  does 
not  carry  the  lien.^  And  yet  a  qualification  has  been  made  of 
even  this  proposition,  for  it  is  held  that  when,  after  such  an  as- 
signment, the  note  is  taken  up  by  the  vendor  and  reassigned, 

1  Francis  v.  Wells,  2  Colo.  660  ;  Mitch-  dor  in  the  giving  of  the  notes,  approving 
ell  V.  Butt,  45  Ga.  162  ;  Latham  v.  Sta-  the  decision  in  Pinchain  v.  Collard,  13 
pies,  46  Ala.  462  ;  Campbell  v.  Roach,  45  Tex.  333  ;  and  he  expresses  his  individual 
Ala.  667.  opinion  in  favor  of  the  broad  position  that 

2  Yarborough  v.  Wood,  42  Tex.  91.  the  benefit  of  the  lien  should  pass  by  an 
8  Russell  i>.  Watt,  41  Miss.  602.                   assignment  of  the  note. 

*  Perkins  v.  Gibson,  51  Miss.  699.  ^  Schnebly  v.  Ragan,  7  G.  &  J.    (Md.) 

The  cases  of  Kelly  z;.  Mills,  41   Miss.  120;  Johnson  v.  Nunnerly,  30  Ark.   153; 

267  ;  Russell  v.  Watt,  lb.  602,  are  cited  Williams    v.    Christian,    23    Ark.    225 ; 

as  fully  recognizing  this  distinction.     Mr.  Smith  v.  Smith,  9  Abb.  (N.  Y.)  Pr.  N.  S. 

Justice  Tarbell  reviews  the  decisions  upon  420 ;  contra,  Davidson  v.  Allen,  36  Miss. 

the  point  whether  the  lien  is  affected  by  the  419. 

substitution  of  another  person  for  the  ven- 

158 


THE   vendor's   implied   LIEN.  [§§  216,  217. 

whereby  the  note  and  lien  are  again  united  in  the  same  party, 
the  Hen  then  attaches.^ 

216.  Exception  when  the  transfer  is  made  as  collateral 
security.  —  But  as  an  exception  to  the  rule  that  the  lien  is  not 
assignable  by  a  mere  transfer  of  the  note,  or  other  obligation 
given  for  the  purchase  money,  it  is  held  that  when  the  transfer 
is  for  the  payment  of  a  debt  of  the  vendor's,  or  is  made  as  col- 
lateral security  for  his  debt,  the  lien  passes  with  the  assignment. 
The  reason  is  said  to  be,  that  when  the  assignment  is  made  for 
the  benefit  of  a  third  person,  or  he  is  merely  a  purchaser  of  the 
note,  there  is  no  peculiar  equity  in  his  favor  ;  but  when  the  trans- 
fer is  for  the  security  or  payment  of  the  vendor's  own  debt,  the 
equity  continues  ;  the  assignee,  in  such  case,  holding  the  lien  as 
well  for  the  benefit  of  the  assignor  as  for  himself,  is  subrogated 
to  all  his  equities.^ 

In  like  manner  it  is  held  that  if  the  vendor  indorse  the  note, 
and  is  afterwards  obliged  to  take  it  up  at  maturity  upon  the  fail- 
ure of  the  vendee  to  pay,  or  if  the  note  in  any  way  comes  back 
into  the  vendor's  possession  as  his  own,  then  both  the  debt  and 
the  lien,  which  had  been  separated  by  the  assignment,  are  again 
united  in  the  vendor,  who  may  enforce  the  lien.  The  lien  revives, 
and  as  the  owner  of  the  note,  the  vendor  may  enforce  it  as  though 
the  assignment  had  never  been  made.*^ 

217.  A  mere  change  in  the  form  of  the  debt,  as  for  instance 
the  taking  of  a  new  note,  does  not  affect  the  lien.^  —  And  it  is 
held  by  some  authorities,  that  the  vendee's  giving  of  his  note  at 
the  vendor's  request  to  a  third  person,  to  whom  he  was  indebted, 
or  to  whom  he  gives  the  amount,  does  not  affect  it ;  and  that 
it  is  immaterial  to  whom  the  acknowledgment  of  the  debt  is 
made,  when  this  is  done  at  the  request  of  the  vendor.^ 

But  if  the  original  note  be  cancelled,  and  a  new  one  given  to 

1  Beraays  v.  Feild,  29  Ark.  218.  Paige  (N.  Y.),  502  ;  Hallock  v.  Smith,  3 

2  Carlton  ;;.  Buckner,  28  Ark.  66;  Barb.  (N.  Y.)  267 ;  Lindsey  y.  Bates,  42 
Crawley  v.  Riggs,  24  Ark.  563  ;  ri(j\vman     Miss.  397. 

V.  Riddle,  14  Ala.  169;  Hallock  v.  Smith,         *  Cordova   v.  Hood,    17    Wall.    1  ;  Al- 
3  Barb.  (N,  Y.)  272.  dridge  v.  Dunn,  7  Blackf.  (Ind.)  249 ;  Di- 

3  Kelly  I'.  Payne,  18  Ala.  371 ;  and  see,     brell  v.  Smith,  40  Tex.  447. 

Turner  v.  Horner,  29  Ark.  440 ;  Bernays        ^  Hamilton  v.  Gilbert,  2  Hcisk.  (Tenn,) 
V.  Feild,  lb.  218;  White  v.  Williams,  1     680;  Nichols  v.  Glover,  41  Ind.  24. 

159 


§§  218,  219.]  LIENS   FOR   PURCHASE   MONEY. 

another  person,  the  lien  is  lost ;  ^  and  a  verbal  agreement  by  all 
the  parties  that  the  lien  should  be  retained,  does  not  save  it. 
Neither  is  it  lost  by  obtaining  a  judgment  upon  a  note.^  At  most, 
the  obtaining  of  judgment  can  only  be  regarded  as  a  circumstance 
bearing  upon  the  question  whether  there  was  a  waiver  or  not.^ 

4.   The  Remedy. 

218.  Cannot  be  enforced  when  the  debt  is  barred.  —  The 
vendor's  lien  existing  solely  in  the  debt,  and  being  a  mere  remedy 
or  security  for  this,  cannot  be  enforced  when  the  debt  itself  cannot 
be  enforced,  and  consequently  it  is  barred  by  the  same  lapse  of 
time  that  bars  the  debt.^  Moreover  this  lien  "  has  no  existence 
until  it  has  been  declared  to  exist  by  a  court  of  equity  ;  "  ^  and  if 
the  debt  is  gone  before  the  lien  is  established  there  can  be  nothing 
to  establish  the  lien  for.     It  cannot  exist  distinct  from  the  debt.^ 

The  only  remedy  for  the  enforcing  the  lien  is  a  suit  in  equity, 
inasmuch  as  the  lien  is  altogether  a  thing  of  equity  and  does  not 
exist  in  law.  If  a  personal  obligation  has  been  taken  for  the 
debt,  an  action  at  law  upon  this  cannot  be  brought  at  the  same 
time  with  a  suit  in  equity  to  enforce  the  lien.  If  the  claim  be  not 
satisfied  by  one  remedy  the  other  may  be  resorted  to.'' 

219.  The  remedy  at  law  must  first  be  exhausted,  or  shown 
not  to  exist,  before  a  bill  in  equity  can  be  filed  to  enforce  the  lien. 
The  purchase  money  is  a  debt  payable  out  of  the  purchaser's  per- 
sonal estate,  and  the  equitable  lien  exists  for  only  so  much  of  the 
debt  as  the  personal  estate  is  insufficient  to  answer.  "  The  ven- 
dor," says  Sugden,^  "  has  not  an  original  charge  on  the  estate,  but 
only  an  equity  to  resort  to  it,  in  case  the  personal  estate  prove  de- 
ficient." If  by  a  proceeding  at  law  he  can  recover  the  debt, 
equity  will  not  interfere  to  enforce  the  lien.^ 

1  Hurloch  V.  Smith,  39  Md.  436  ;  Phelps  effect  see  Judge  Story  in  Oilman  v.  Brown, 

V.  Canover,  25  111.  314.     So  held,  also,  in  1  Mas.  192. 

Texas,  when  additional  security  was  given.  ^  Pratt  v.  Vanwyck,  6  Gill  &  J.  (Md.) 

Jackson  v.  Hill,  39  Tex.  493.  495  ;  Eichardson  v.  Stillinger,  12  lb.  477  ; 

■^  In  re  Perdue,  2  Bank.  Reg.  183.  Ridgeway  v.  Toram,  2  Md.  Ch.  303 ;  Ford 

3  Dubois  V.  Hull,  43  Barb.  (N.  Y.)  26.  v.  Smith,  1   McAr.  (D.  C.)  592  ;  Eyler  v. 

*  Trotter  y.  i:rwin,  27  Miss.  772.  Crabbs,  2  Md.  137  ;  Roper  v.  McCook,   7 

s  Linihicum  ?;.  Tapscott,  28  Ark.  267.  Ala.  318;  Battorf  y.   Conner,   1    Blackf. 

«  Borst  V.  Corey,  15  N.  Y.  505.  (Ind.)   287  ;  Russell  v.  Todd,   7   lb.  239. 

''  Barker  v.  Smark,  3  Beav.  64.  In  Maktland  it  is  now  provided  by 

"  Vendors  &  Purchasers,  394.     To  same  statute  that  the  court  of  chancery  may  de- 

160 


THE   vendor's   implied    LIEN.  [§  220. 

A  different  rule  prevails  in  several  states  where  the  vendee  may 
enforce  his  lien  in  the  first  instance,  without  having  taken  any 
steps  to  collect  the  debt  at  law.^ 

In  some  states  a  different  doctrine  of  the  nature  of  the  lien  pre- 
vails under  which  the  lien  is  enlarged,  and  made  moi'e  like  that 
which  exists  under  the  civil  law.  It  is  declared  to  arise  and  exist 
at  the  time  of  the  sale,  and  to  result  from  the  sale  on  credit  with- 
out other  security,  regardless  of  the  subsequent  inability  of  the 
purchaser  to  pay,  or  of  failure  to  compel  him  to  do  so  by  suit  at 
law.2 

220.  Parties  to  bill  to  enforce  lien.  —  The  vendor's  lien  upon 
the  death  of  the  vendor  follows  the  debt,  and  may  be  enforced  by 
the  person  entitled  to  enforce  the  debt  itself.^  A  specific  bequest 
of  the  claim  for  the  purchase  money  carries  the  lien  with  it.* 
Ordinarily  the  right  to  enforce  the  lien  after  the  death  of  the 
vendor  belongs  to  the  personal  representative,^  When  lands  are 
sold  by  an  administrator  under  an  order  of  court,  the  right  to  en- 
force the  lien  for  the  purchase  money  ordinarily  belongs  to  him  ;  ^ 
but  when  the  sale  is  made  for  the  purpose  of  division  among  the 
heirs,  who  are  the  beneficiaries,  and  the  existence  of  debts  or  other 
necessity  for  an  administrator  is  not  shown,  the  heirs  may  main- 
tain a  bill  in  their  own  names  to  enforce  the  lien.' 

The  administrator  of  a  deceased  vendee  having  no  interest  in 
the  land  is  not  a  necessary  party  to  a  suit  to  enforce  the  lien.*' 
His  heirs-at-law  or  devisees  are  necessary  parties.^  His  widow, 
having  a  contingent  interest  in  the  surplus,  is  a  proper  party. ^^ 
But  after  a  sale   of  the  land  by  the  vendee's  administrator  in 

cree  a  sale  to  enforce  a  vendor's  lien  upon  ^  White  v.  Downs,  40  Tex.  225. 

any  estate  in  lands  whether  legal  or  equi-  ^  2  Story  Eq.  Jur.  §  1227. 

table,  although  the  complainant  may  have  *  Tiernan  v.  Beam,  2  Ohio,  383,  386  ; 

a  perfect  remedy  at  law  for  the  money  for  Lavender  v.  Abbott,  30  Ark.  172. 

which  the  lien  is  claimed.   Pub.  Gen.  Laws,  ^  2  Story  Eq.  Jur.  §  789. 

Code,  1860,  p.  99.  6  Blanton  v.  Knight,  51  Ala.  333. 

1  High  V.  Batte,  10  Yerg.  (Tcnn.)   186;  ^  Blanton  v.  Knight,  supra. 

Pratt  V.  Clark,  57   Mo.  189;  Richardson  «  Edwards  y.  Edwards,  5  Heisk.  (Tenn.) 

V.  Baker,  5  J.  J.  Marsh.  (Ky.)  323  ;  Stew-  123 ;  McKay  v.  Green,  3  Johns.   (N.   Y.) 

art  V.  Caldwell,  54  Mo.   536 ;  Bradley  v.  Ch.  56. 

Bosley,  1  Barb.  (N.  Y.)  Ch.  125  ;  Dubois  9  Jackson  v.  Hill,  39  Tex.  493  ;  and  see 

V.  Hull,  43  Barb.  (N.  Y.)  26  ;    Owen    v.  Converse  v.  Sorley,  39  Tex.  515. 

Moore,  14  Ala.  640;  Campbell  v.  Roach,  i''  Edwards  v.  Edwards,  s!/;jra.     -, 
45  Ala.  667. 

VOL.  I.                                      11  IQl 


§§  221,  222.]  LIENS   FOR   PURCHASE  MONEY. 

his  official  capacity,  to  one  who  had  notice  of  the  lien,  who  ia 
made  a  party  to  the  bill,  it  is  not  necessary  to  join  the  heirs.  ^ 

A  mere  tenant  or  agent  in  possession  of  the  land,  but  having 
no  interest  in  it,  is  not  a  proper  defendant.  ^ 

221.  The  bill  and  decree.  —  A  bill  to  enforce  a  vendor's  lien 
should  contain  a  sufficient  description  of  the  land  upon  which  it  is 
sought  to  enforce  it,  to  enable  the  court  to  render  an  effectual  de- 
cree of  sale.^ 

When  some  of  the  notes  secured  by  it  are  not  due,  a  sale  can 
be  decreed  only  of  so  much  of  the  land  as  will  suffice  to  pay  the 
debt  then  accrued  and  the  costs  of  suit,  leaving  the  other  notes 
to  stand  as  a  lien  upon  the  remainder  of  the  land.*  It  is  errone- 
ous to  decree  a  sale  subject  to  the  lien  of  the  remaining  notes. 

A  vendor  having  liens  upon  separate  parcels  of  land  sold  to  the 
same  vendee  at  different  times  cannot  have  a  decree  for  the  ag- 
gregate amount  of  the  liens,  and  for  the  sale  of  all  the  land  to 
satisfy  it ;  but  the  decree  must  be  for  the  sale  of  each  tract  for 
the  amount  due  upon  it  specifically.  The  lien  is  distinct  for 
each  parcel.^ 

222.  Marshalling  assets.  —  When  land  subject  to  a  vendor's 
lien  is  subsequently  mortgaged  to  one,  who  in  good  faith,  and 
without  notice  of  the  lien,  pays  a  valuable  consideration  for  his 
title,  he  acquires  a  priority  over  the  vendor,  and  is  entitled  to 
have  his  claim  satisfied  in  preference  to  the  claim  of  the  vendor 
for  the  unpaid  purchase  money.  But  if  the  mortgagee  has  also 
security  for  his  claim  upon  other  real  or  personal  property,  he  may 
be  compelled  in  equity  to  exhaust  his  remedy  upon  tlie  security 
held  by  him,  before  resorting  to  the  lands  affected  by  the  ven- 
dor's lien  ;  and  if  any  part  of  the  personal  security  be  wasted 
or  misapplied  through  his  fault  or  negligence,  he  must  bear 
the  loss.^ 

As  a  general  rule,  upon  the  decease  of  the  vendee  his  heir  or 

1  Thornton  v.  Neal,  49  Ala.  590.  Burton  ;;.  McKinney,  6  lb.  428.     And  see 

2  Milner  v.  llamsey,  48  Ala.  287 ;  Reed  Cod  wise  v.  Taylor,  4  Sneed  (Tenn.),  346. 
V.  Gregory,  46  Miss.  740.  &  Edwards  v.  Edwards,  5  Heisk.  (Tenn.) 

^  Long  V.  Pace,  42  Ala.  495.  12.3. 

*  Emison  v.  Risque,  9  Bush  (Ky.),  24  ;        «  Gordon  v.  Bell,  50  Ala.  213. 
162 


THE  vendee's  lien.  [§  223. 

devisee  is  entitled  to  have  the  unpaid  purchase  money  paid  out  of 
the  personal  property.  ^ 

PART  II. 

THE    vendee's    lien. 

223.  Money  paid  by  a  vendee  of  land  prematurely,  or  be- 
fore receiving  a  conveyance,  is  a  charge  upon  the  estate  in  the 
hands  of  the  vendor,  or  in  the  hands  of  his  grantee  with  notice.^ 
"  There  can  be  no  doubt,  I  apprehend,"  says  Lord  Cranworth,^ 
"  that  when  a  purchaser  has  paid  his  purchase  money,  though  he 
has  got  no  conveyance,  the  vendor  becomes  a  trustee  for  him  of 
the  legal  estate,  and  he  is,  in  equity,  considered  as  the  owner  of 
the  estate.  When,  instead  of  paying  the  whole  of  his  purchase 
money,  he  pays  a  part  of  it,  it  would  seem  to  follow,  as  a  neces- 
sary corollary,  that  to  the  extent  to  which  he  has  paid  his  pur- 
chase money,  to  that  extent  the  vendor  is  a  trustee  for  him ;  in 
other  words,  that  he  acquires  a  lien,  exactly  in  the  same  way  as 
if,  upon  the  payment  of  part  of  the  purchase  money,  the  vendor 
had  executed  a  mortgage  to  him  of  the  estate  to  that  extent.  It 
seems  to  me,  that  that  is  founded  upon  such  solid  and  substantial 
justice,  that  if  it  is  true  that  there  is  no  decision  afl&rming  that 
principle,  I  rejoice  that  now,  in  your  lordship's  house,  we  are 
able  to  lay  down  a  rule  that  may  conclusively  guide  such  ques- 
tions for  the  future.  I  think,  however,  that  there  are  some  au- 
thorities which  have  been  pointed  out,  which  have  established 
that  rule  in  principle  if  not  in  terms.  But  I  think  it  is  unim- 
portant to  go  into  that,  because  it  is  now  established  and  will 

1  Wright  V.  Holbrook,  32  N.  Y.  587  :  ^  Rose  v.  Watson,  10  Ho.  Lords  Cas. 
Lamport  v.  Beeman,  34  Barb.  (N.  Y.)  672;  and  see,  also,  Wythes  v.  Lee,  3 
239  ;  Livingston  v.  Newkirk,  3  Johns.  (N.  Drew.  396  ;  Cator  v.  Earl  of  Pembroke,  1 
Y.)  Ch.  312;  Warner  v.  Van  Alstyne,  3  Bro.  C.  C.  301. 

Paige  (N.  Y.),  513.  In  California  it  is  provided  that  one 

2  2  Story  Eq.  §  1217  ;  Lane  r.  Ludlow,  who  pays  to  the  owner  any  part  of  the 
6  Paige  (N.  Y.),  316,  n. ;  Chase  v.  Peck,  price  of  real  property,  under  an  agreement 
21  N.  Y.  585  ;  Wickham  i-.  Robinson,  14  for  the  sale  thereof,  has  a  special  lien  upon 
Wis.  494  ;  Cooper  v.  Merritt,  30  Ark.  686  ;  the  property,  independent  of  possession, 
Stewart  v.  Wood,  63  Mo.  252  ;  Brown  v.  for  such  part  of  the  amount  paid  as  he 
East,  5  Mon.  (Ky.)  407;  Wickman  v.  may  be  entitled  to  recover  back,  in  case 
Robinson,  14  Wis.  494  ;  Shirley  v.  Shir-  of  a  failure  of  consideration.  Civil  Code, 
ley,  7  Blackf.  (Ind.)  452.  1872.     See  3050. 

163 


§§  224,  225.]  LIENS   FOR   PURCHASE   MONEY. 

from  henceforth  be  estabHshed  as  a  very  sound  principle,  founded 
on  solid  justice." 

224.  Upon  the  rescission  of  a  contract  of  sale,  it  seems  there 
should  be  a  lien  for  the  purchase  money  paid  upon  it  in  those 
states  where  a  vendor's  implied  lien  exists.^  If  there  has  been  a 
sale  and  conveyance  of  the  land  in  the  first  place,  there  is  no 
reason  why  the  lien  should  not  arise  upon  a  resale  and  reconvey- 
ance of  the  property .2  The  lien  will  then  arise  from  the  convey- 
ance in  the  same  manner  as  it  arose  upon  the  first  conveyance. 


PART  in. 

THE    vendor's    lien    BY    CONTRACT    OR   RESERVATION. 

1.  Nature  and  Extent  of  such  Lien. 

225.  Lien  by  contract  not  a  vendor's  lien. —  The  interest  of 
a  vendor  who  has  given  an  ordinary  contract  or  bond  for  the  sale 
of  land,  but  retains  the  title  to  the  land  in  himself,  is  often  spoken 
of  in  the  cases  as  a  vendor's  lien  ;  ^  but  it  is  conceived  that  this  is 
a  misuse  of  terms,  which  should  be  avoided  as  leading  to  confu- 
sion. There  is  a  fundamental  distinction  between  a  vendor's  se- 
curity in  such  case,  and  the  lien  implied  by  law,  and  properly 
known  as  a  vendor's  lien.  When  the  legal  title  remains  in  the 
vendor,  the  vendee  has  merely  an  equity  of  redemption  in  the 
land,  and  no  act  of  his  can  possibly  affect  the  vendor's  title ;  while 
in  case  of  a  mere  lien  in  the  vendor,  the  fee  is  in  the  purchaser, 
who  may  at  any  time  discharge  the  lien  by  conveying  the  land  to 
a  hond  fide  purchaser  for  value.^  In  the  one  case  the  vendor  has 
a  lien  without  any  title,  and  in  the  other  he  has  the  title  without 
any  occasion  for  a  lien.  His  title,  by  the  terms  of  the  contract,  is 
his  security ;  and  he  cannot  in  any  way  be  divested  of  his  title, 
except  the  vendee  fulfil  his  contract,  and  by  that  means  become 

1  See  §  191.  4  Church  v.  Smith,  39  Wis.  492,  496, 

*  Scott  V.  Griggs,  49  Ala.  185;  Napier  per  Lyon,  J.;    Sparks   v.  Hess,  15  Cal. 

u.  Jones,  47  Ala.  90.    See  Willis  v.  Searcy,  194,  per   Ch.  J.  Field;    Driver   v.  Hud- 

49  Ala.  222.  speth,  16  Ala.  348;    Wells  v.  Smith,  44 

'  See,  of  recent  cases,  Stevens  v.  Chad-  Miss.  296 ;  Pitts  v.  Parker,  44  Miss.  247 ; 

wick,  10  Kans.  406 ;  Smith  v.  Rowland,  13  Hutton  v.  Moore,  26  Ark.  382  ;  Hines  v. 

Kans,245;  Neel  v.  Clay,  48  Ala.  252  ;  Hill  Perkins,  2  Heisk.  (Tenn.)  395;  Reese  v. 

V.  Grigaby,  32  Cal.  55.  Burts,  39  Ga.  565. 

164 


THE   vendor's   lien   BY   CONTRACT    OR  RESERVATION.       [§  226. 

entitled  to  a  conveyance.  As  already  noticed,  the  relation  of  the 
vendor  and  vendee  in  such  case  bears  a  strong  similitude  to  that 
of  mortgagee  and  mortgagor.  The  vendor,  having  the  title,  has  a 
substantial  security  ;  having  no  title,  he  has  by  implication  a  lien 
in  name,  but  it  exists  only  in  name  until  a  court  of  equity  has 
given  it  force  by  a  decree.^  A  lien  by  contract  "  has  none  of  the 
odious  characteristics  of  the  vendor's  equitable  lien."  ^ 

It  is  just  as  proper  to  call  a  mortgage  given  for  purchase  money 
a  vendor's  lien,  as  to  call  by  that  name  the  lien  of  one  who  has 
given  a  contract  to  sell,  but  retains  the  legal  title,  or  who  has  re- 
served a  lien  in  his  deed  of  conveyance. 

It  is  often  said  that  a  vendor's  lien  may  arise  as  well  before  the 
conveyance  as  after  it.^  But  the  same  courts  which  give  this 
name  to  the  lien  retained  by  a  vendor,  who  holds  the  legal  title  as 
securit}^  for  the  performance  of  the  contract  of  sale,  generally  pro- 
ceed to  point  out  the  differences  between  this  lien  and  that  which 
is  implied  upon  a  conveyance ;  and  inasmuch  as  the  only  likeness 
between  the  two  liens  is  in  their  both  securing  the  purchase  money, 
it  is  proposed  in  treating  of  the  subject  to  confine  the  terra  "  ven- 
dor's lien  "  to  that  lien  which  is  in  equity  implied  to  belong  to  a 
vendor  for  the  unpaid  purchase  price  of  land .  sold  and  conveyed 
by  him. 

226.  The  legal  effect  of  a  title  bond  is  sometimes  said  to  be 
like  a  deed  by  the  vendor  and  a  mortgage  back  by  the  vendee. 
The  vendor  holds  the  legal  title,  and  all  persons  must  necessarily 
take  notice  of  it,  and  although  the  vendee  enter  into  possession, 

1  "  It  is,  in  short,  a  right  which  has  no  Upon  this  point  Mr.  Hilliard,  in  his 
existence,  until  it  is  established  by  the  Treatise  on  Mortgages,  vol.  1,  p.  665,  very 
decree  of  a  court  in  the  particular  case."  justly  remarks  :  "  It  is  difficult  to  under- 
Per  Story,  J.,  in  Oilman  v.  Brown,  1  Ma-  stand  how  a  party  can  have  a  lien  upon 
son,  192.  "  His  lien  is  an  individual  equity,  property,  of  which  he  at  the  same  time  has 
of  no  force  until  declared  by  a  court  of  the  absolute  legal  ownershi]) ;  or  how  the 
equity."  Button  v.  Moore,  26  Ark.  382,  same  term  can  be  accurately  employed  to 
396,  quoted  in  Campbell  v.  Ilankin,  28  denote  such  ownership  subject  to  a  mere 
Ark.  401,  406.  executory  agreement  for  conveyance,  and 

2  Per  Ch.  Justice  Watkins,  in  Moore  v.  the  very  shadowy  interest,  '  neither  prop- 
Anders,  14  Ark.  634.  erty  nor  a  right  of  action,  neither  jus  in 

8  English   V.   Russell,    1    Hempst.   35  ;    re  nor  jus  ad  rem,'  which  remains  in  the 
Yancey  v.  Mauck,  15  Gratt.  (Va.)  300;    vendor  after  an  actual  transfer  to  the  ven- 
Hill  V.  Grigsby,  32   Cal.   55  ;  Amory  v.    dee." 
Keilly,   9  Ind.  490  ;  Servis  v.  Beatty,  32 
Miss.  52. 

165 


§  227.]  LIENS   FOR   PURCHASE   MONEY. 

his  deed  will  of  course  convey  only  his  equitable  title.  Like  a 
mortgagor  in  possession  he  has  an  equity  of  redemption,  while  the 
vendor  holds  the  title  by  reservation  rather  than  by  grant,  as  in 
the  case  of  an  ordinary  mortgage.  The  equitable  estate  of  the 
vendor  may  be  alienated  or  devised  as  real  estate,  and  upon  liis 
death  it  will  descend  to  his  heirs  ;  while  on  the  other  hand,  al- 
though the  vendor  holds  the  legal  title  upon  his  death,  the  securi- 
ties he  has  taken  for  the  purchase  money  go  to  his  personal  repre- 
sentative.^ Although  the  vendor's  remedy  upon  the  note  or  con- 
tract or  bond  taken  for  the  purchase  money  be  barred  by  the  stat- 
ute of  limitations,  or  by  the  discharge  in  bankruptcy  of  the  vendee, 
the  lien  upon  the  land  is  not  affected.  As  in  respect  to  mortgages, 
the  vendor's  lien  will  in  such  case  be  presumed  to  have  been  satis- 
fied after  the  lapse  of  twenty  years,  and  the  continued  possession 
of  the  vendee ;  ^  and  on  the  other  hand,  if  the  vendor  remain  in 
possession,  so  long  as  he  recognizes  the  vendee  as  the  equitable 
owner  the  statute  does  not  begin  to  run ;  and  after  it  does  begin 
to  run,  the  vendee  may  at  any  time  within  the  same  period  re- 
deem the  title.^ 

When  after  such  a  contract  the  vendor,  at  the  request  of  the 
vendee,  pays  for  improvements  upon  the  property,  which  by  the 
terms  of  the  contract  the  vendee  was  himself  to  make  before  re- 
ceiving a  conveyance,  the  amount  so  paid  becomes  a  further  lien 
upon  the  property,  which  the  vendor  may  enforce  by  a  sale  of  the 
vendee's  interest  under  the  contract.^ 

227.  The  holder  of  the  contract  cannot  impair  the  security. 
The  legal  title  of  the  vendor  in  such  case  is  not  aft'ected  by  any 
liens  created  by  the  person  who  holds  the  contract  of  purchase,  as 
for  instance  a  mechanic's  lien  for  labor  and  materials  furnished 
him  ;  ^  or  a  conveyance  or  mortgage  by  him  ;  ^  or  a  judgment  or 

1  Smith  ?;.  Moore,  26  111.  392;  Button  lard,  41  Cal.  444 ;  2  Story's  Eq.  §   1212. 

V.  Schroyer,   5  Wis.   598;  Lewis  v.  Haw-  See  Greeue  v.  Cook,  29  111.  186. 

kins,  23  Wall.  119 ;  Holman  v.  Patterson,  2  Lewis  v.  Hawkins,  23  Wall.  119. 

29  Ark.  357  ;  Lewis  v.  Boskins,  27  Ark.  3  Harris  v.  King,  16  Ark.  122. 

61;    Scroggins  v.  Hoadley,  56   Ga.   165;  4  Grove  w.  Miles,  71  III.  376;  S.   C.   58 

Lingan  v.  Henderson,  1  Blana  (Md.)  Ch.  111.  338. 

236;  Relfe  v.  Relfe,  34   Ala.  504;  Cleve-  5  geitz  v.  U.  P.  R.  Co.  16  Kans.  133; 

land  V.   Martin,   2    Head   (Tenn.),    128;  Cochran  y.  Wimberly,  44  Miss.  503. 

Richards  v.  Fisher,  8  W.  Va.   55;  Mer-  c  gitz  „.  Deihl,  55  Mo.  17;  Harvill  v. 

ritt  V.  Judd,   14  Cal.    59;  Purdy   y.  Bui-  Lowe,   47    Ga.    214  ;   Carter   v.   Sims,   2 

Heisk.  (Tenn.)  166. 
166 


THE    vendor's   lien    BY    CONTRACT    OR   RESERVATION.       [§  228. 

attachment  against  liim.^  Such  claims  necessarily  arise  after  the 
lien  created  by  the  contract,  and  must  be  subject  to  that  lien. 
The  vendee  cannot  possibly  do  anything  to  impair  that  lien  any 
more  than  a  mortgagor  can,  after  the  execution  of  his  mortgage,  do 
anything  with  his  title  to  impair  that  security. 

After  a  title  bond  or  a  contract  of  sale  has  been  given  for  the 
conveyance  of  lands  upon  the  payment  of  the  purchase  money,  the 
lands  are  not  subject  to  sale  under  execution  at  law,  at  the  suit  of 
one  obtaining  judgment  afterwards  against  the  vendor ;  the  lien 
of  the  vendee  prevails  against  the  lien  of  the  judgment  creditor, 
which  can  operate  only  upon  the  interest  which  the  vendor  had  at 
the  time  of  its  rendition. ^ 

228.  An  express  reservation  in  a  deed  of  a  lien  upon  the 
land  conveyed  creates  an  equitable  mortgage,  and  when  the  deed 
is  recorded  every  one  is  bound  to  take  notice  of  the  incum- 
brance. Thus,  where  land  was  sold,  and  for  the  purchase  money 
several  promissory  notes  of  the  purchaser  were  taken,  and  these 
were  described  in  the  deed  of  conveyance,  and  expressly  made  a 
lien  upon  the  lands  conveyed,  a  purchaser  on  execution  obtained 
only  an  equity  of  redemption  subject  to  such  lien.^ 

To  create  such  a  lien  there  must  be  something  more  than  a  mere 
recitation  that  the  purchase  money,  to  a  certain  amount,  remains 
unpaid  ;  this  amount  must  be  expressly  charged  upon  the  land 
conveyed.*  But  a  grant  of  land,  "  to  have  and  to  hold  the  same 
under  and  subject,  nevertheless,  to  the  payment  "  of  a  certain  sum 
at  the  decease  of  the  grantee,  constitutes  a  charge  upon  the  land, 
in  whosesoever  hands  it  may  be.° 

A  stipulation  in  a  deed,  that  the  title  shall  not  vest  in  the 
grantee  until  the  purchase  money  is  paid,  amounts  in  equit}^  to  a 
mortgage.*^  So  does  a  deed  providing  that  it  shall  be  absolute  on 
the  payment  of  certain  notes,  but  in  default  of  payment  shall  be 
void.'^ 

1  Hadley  v.  Nash,  69  N.  C.  162  ;  Rob-     Stratton  v.  Gold,  40  Miss.  781  ;  Caldwell 
erts   V.   Francis,   2   Heisk.    (Tenn.)    127;     t-.  Fraim,  32  Tex.  310. 

Tuck  V.  Calvert,  33  Md.  209.  *  Heist  v.  Baker,  49  Pa.  St.  9. 

2  Shinn  v.  Taylor,  28  Ark.  523  ;  Money        ^  Heist  v.  Baker,  supra. 

V.  Dorsey,  7  S.  &  M.   (Miss.)  22  ;  Taylor        6  pi,gh  i-.  Holt,  27  Miss.  461. 
V.  Eckford,  11  lb.  21.  "  Carr  v.  Holbrook,  1  Mo.  240. 

8  Davis   V.    Hamilton,    50    Miss.    213 ; 

167 


§§  229,  230.]  LIENS   FOR   PURCHASE   MONEY. 

229.  A  lien  reserved  is  a  lien  by  contract.  —  A  lien  for  the 
purchase  money  expressly  reserved  by  a  vendor  in  his  deed  of 
conveyance  is  a  lien  created  by  contract,  and  not  by  implication 
of  law.  It  is  a  contract  that  the  land  shall  be  burdened  with 
the  lien  until  the  note  is  paid.  It  is  really  a  mortgage.  The  lien, 
then,  becomes  a  matter  of  record  when  the  deed  is  recorded.^  It 
is  not  waived  by  the  taking  of  other  security,  as  is  the  case  with 
an  ordinary  vendor's  lien.^  It  is  governed  by  the  same  rules  that 
a  mortgage  is.  It  passes  by  an  assignment  of  the  note  secured 
by  it.3  It  is  foreclosed  as  a  mortgage ;  and  there  is  the  same 
right  of  redemption  for  a  limited  period  after  a  foreclosure  sale.* 

"  The  reservation  of  the  vendor's  lien  in  the  deed  of  convey- 
ance," says  Mr.  Justice  Bradley,  of  the  Supreme  Court  of  the 
United  States,^  "  is  equal  to  a  mortgage  taken  for  the  purchase 
money  contemporaneously  with  the  deed,  and  nothing  more. 
The  purchaser  has  the  equity  of  redemption  precisely  as  if  he 
had  received  a  deed  and  given  a  mortgage  for  the  purchase 
money." 

The  lien  differs  also  from  a  vendor's  lien  in  that  it  may  secure 
the  performance  of  any  covenant  or  undertaking  agreed  upon,  in- 
stead of  a  fixed  sum  payable  in  money  ;  as  for  instance  it  may 
secure  an  agreement  to  pay  in  specific  articles.^ 

230.  The  vendee's  title  imperfect  until  the  debt  is  paid.  — 
When  land  has  been  conveyed  by  a  deed,  reserving  a  lien  upon 
it  for  the  purchase  money,  the  lien  is  an  incumbrance  upon  it, 
and  an  execution  sale  of  it  as  the  property  of  the  vendee  should  be 

1  White  V.  Downs,  40  Texas,  226,  per  tract,  visible  to  all,  and  may  be  recorded. 

Gray,  J.     "  The   vendor's  lien,  however.  All   of  the   same    consequences    do  not, 

properly  understood,  is  not  in  all  respects  therefore,  necessarily  result,  as  to  assign- 

the  same  as  the  express  lien  often  reserved  ees  or  holders  of  the  debt  secured  by  the 

in  deeds  of   conveyance   for  payment   of  vendor's  lien,  nor  as  to  purchasers  of  the 

purchase  money,  nor  as  strict  mortgages  land  liable  to  it,  as  between  the  original 

or  deeds  of  trust  for  it,  nor  yet  as  the'se-  parties  and  privies,  as  do  often  occur  in  the 

curity  held  by  a  vendor  who  has  only  given  cases  of  express  lien  by  contract." 

a  bond  for  the  title.     These  are  often  con-  2  Carpenter  v.  Mitchell,  54  III.  126. 

founded  with  the  vendor's  lien,    because  ^  Carpenter  v.  Mitchell,  supra  ;  Markoe 

security  of  the  purchase  money  is  common  v.  Andras,  67  111.  34. 

to   all   of  them.     But  the  vendor's  lien  *  Markoe  v.  Andras,  supra. 

arises  wholly  from  inference  or  implica-  5  j^jngy.  Young  Men's  Ass'n,  1  Woods, 

tion,  which  is  invisible,  and  cannot  be  re-  386. 

corded ;  the  otliers  are  from  express  con-  «  Harvey  v.  Kelly,  41  Miss.  490. 
168 


THE  vendor's  lien  BY  CONTRACT  OR  RESERVATION.       [§§  231,  232. 

made  as  of  incumbered  property.^  It  has  precedence  over  a  prior 
judgment  against  the  vendee.^ 

The  vendee's  title  is  imperfect  until  this  debt  is  paid.  Every- 
one taking  the  title  through  him  must  have  notice  of  the  lien  re- 
served. This  lien  is  in  fact  an  equitable  mortgage.  In  the  case 
of  an  implied  lien,  the  courts  have  generally  been  unwilling  to  ex- 
tend it  beyond  the  security  of  the  vendor,  because  it  might  tend 
to  embarrass  the  vendee's  right  of  disposing  of  the  property  by 
giving  countenance  to  secret  liens  upon  it ;  but  this  reason  does 
not  apply  when  the  lien  is  reserved  by  express  contract  in  the 
deed.2 

The  effect  of  a  lien  expressly  reserved  cannot  be  controlled  by 
evidence  of  a  verbal  agreement  that  there  should  be  no  lien.* 

231.  A  married  woman  is  bound  also  by  a  contract  in  the 
nature  of  a  mortgage  for  purchase  money  of  land  conveyed  to  her, 
and  created  by  the  vendor's  reserving  in  the  deed  to  her  a  lien 
upon  the  land  for  the  security  of  her  note,  given  for  such  purchase 
money.^ 

232.  "Waiver  of  the  lien.  —  A  lien  reserved  by  contract,  or 
existing  in  the  vendor  by  reason  of  his  not  having  parted  with 
the  legal  title,  having  given  only  a  bond  or  contract  of  sale,  is  of 
course  not  lost  or  waived  as  an  implied  lien  is  by  accepting  other 
security.^  Neither  does  a  change  of  notes,  or  the  substitution  of 
the  notes  of  another  person,  as  for  instance  those  of  a  subsequent 
purchaser,  affect  the  lien  ; "  nor  does  the  taking  of  new  notes  by 
an  assignee  in  his  own  name,  and  extending  the  time  of  payment.® 
It  is  not  waived  by  taking  under  duress  depreciated  currency  in 
payment  of  the  debt.^ 

1  Thompson  v.  Heflfner,  11  Bush  (Ky.),     Summerville,  55  Mo.  164  ;  Adams  r.  Cow- 
353.  herd,  30  Mo.  458  ;  Lewis  v.  Perry,  8  Bush 

2  Parsons  v.  Hoyt,  24  Iowa,  154.  (Kj-).  615  ;  Hurley  v.  Hollyday,  35  Md. 
8  Stratton  v.  Gold,  40  Miss.  778.  469;  Schwarz  v.  Stein,  29  Md.  119;  Ma- 
*  Hutchinson  r.  Patrick,  22  Tex.  318.        gruder   v.  Peter,  11  G.  &  J.  (Md.)  217; 

5  See  Carpenter  r.  Mitchell,  54  111.  126.  Hatcher  v.   Hatcher,  1  Rand.    (Va.)  53; 

6  Lusk  V.  Hopper,  3  Bush  (Ky.),  179  ;  Kuisely  v.  Williams,  3  Gratt.  (Va.)  265. 
Fogg  V.  Rogers,  2   Coldw.   (Tenn.)   290;  "  Bozeman  v.  Ivey,  supra ;  Bradford  v. 
Hines  v.  Perkins,  2  Heisk.  (Tenn.)  395  ;  Harper,  25  Ala.  337.                                   , 
McCaslin  v.  The  State,  44  Ind.  151  ;  Boze-  ^  Conner  v.  Banks,  18  Ala.  42. 

man  v.  Ivey,  49  Ala.  75  ;    Strickland  v.        ^  Ludington  v.  Gabbert,  5  W.  Va,  330. 

169 


§§  233-235.]  LIENS    FOR   PURCHASE   MONEY. 

The  vendor  who  has  an  express  lien  may  by  his  acts  or  decla- 
rations waive  it,  as  for  instance  by  inducing  another  to  buy  the 
property  as  unincumbered ;  or  by  permitting  and  encouraging 
the  administrator  of  the  vendee  to  sell  the  property  to  satisfy  the 
lien,  and  bidding  at  the  sale.  Such  bidding  at  the  sale  could 
properly  be  interpreted  by  the  purchaser  as  a  waiver  of  the  lien, 
and  as  an  acknowledgment  that  he  was  looking  solely  to  the  pro- 
ceeds of  the  sale,  and  not  to  the  land  itself,  for  the  satisfaction  of 
his  claim.^ 

233.  Order  of  liability  of  parcels  sold.  —  Purchasers  of  land, 
subject  to  a  lien  by  contract  for  the  payment  of  purchase  money, 
have  the  same  equities  as  between  themselves  as  purchasers  sub- 
ject to  a  formal  mortgage.  The  rule  of  contribution  in  the  ad- 
verse order  of  sale  applies  where  the  same  rule  applies  in  the  case 
of  mortgages.  Simultaneous  purchasers  should  contribute  pi^o 
rata? 

234.  When  the  vendor  in  possession  must  account.  — 
When  a  vendor,  after  giving  a  bond  or  contract  of  sale,  remains 
in  possession,  and  there  is  delay  in  making  the  conveyance  beyond 
the  time  set  for  it,  the  vendee  should  be  credited  with  a  share  of 
the  rents  and  profits  received  from  the  use  and  enjoyment  of  the 
property,  proportioned  to  the  amount  he  may  have  paid  on  his 
purchase.^ 

2.   Transfer  and  Enforcement  of  the  Lien. 

235.  Assignment  of  the  note  or  bond  passes  the  security 
on  the  land.  —  An  assignee  of  a  note  or  bond  given  for  purchase 
money,  by  one  who  has  taken  a  contract  of  sale  or  who  has  taken 
a  conveyance  in  wliich  a  lien  upon  the  land  is  expressly  reserved, 
like  the  assignee  of  a  note  secured  by  mortgage,  is  generally  held 
to  be  entitled  to  the  benefit  of  the  security,  and  may  enforce 
specific  performance  of  the  contract  of  sale  or  may  enforce. the  lien 
reserved.^     If  a  vendor  who  rcitains  the  legal  title  for  his  security 

The  vendor  was  compelled  in  this  case  to  s  Grove  v.  Miles,  71  111.  376. 

receive  Confederate  treasury  notes  during  ^  Carpenter   v.   Mitchell,    54    111.    126; 

the  Rebellion.  Stevens  v.  Chadwick,  10  Kans.  406,  and 

1  Butler  V.  Williams,  5  Heisk.  (Tenn.)  cases  cited;  McClintic  v.  Wise,  25  Gratt. 
241.  ( Va.)  448  ;  Kimbrough  v.  Curtis,  50  Miss. 

2  Wilkes  i).  Smith,  4  Heisk.  (Tenn.)  86.  117;    Dollahite    v.   Orne,   2   Sm.   &  M. 

170 


THE   vendor's   lien   BY    CONTRACT    OR   RESERVATION.       [§  236. 

assigns  the  notes  taken  for  the  purchase  money,  he  then  holds  the 
legal  title  as  trustee  for  the  holder  of  the  notes,  and  he  cannot 
properly  do  anything  to  defeat  the  rights  of  such  holder.  If  he, 
regardless  of  the  trust,  conveys  the  land  to  a  stranger,  who  pur- 
chases in  good  faith,  the  vendor  then  becomes  a  trustee  of  the  pur- 
chase money  which  he  has  realized,  for  the  benefit  of  the  holder 
of  the  notes  he  assigned. ^ 

The  assignment  of  a  note  which  upon  its  face  shows  that  it  was 
given  in  consideration  of  the  purchase  money  of  land,  or  expressly 
reserves  a  lien  upon  it,  passes  the  lien  to  the  assignee  who  may 
enforce  it.^ 

One  who  takes  title  from  the  vendor,  with  knowledge  of  an 
outstanding  note  for  the  purchase  money  previously  assigned  by 
the  vendor,  takes  subject  to  the  lien  of  such  note,^  unless  the  note 
was  transferred  after  maturity,  or  in  such  manner  that  it  is  sub- 
ject in  the  hands  of  the  holder  to  all  equities  the  maker  may  have 
against  it.* 

236.  Order  of  payment  of  several  notes.  —  In  case  there 
are  several  notes  or  bonds  secured  in  this  way,  the  same  equitable 
rule  is  applied  as  to  the  order  of  payment  of  such  notes  or  bonds 
that  is  applied  when  they  are  secured  by  a  formal  mortgage  or 
trust  deed  ;  that  which  was  first  assigned  carries  so  much  of  the 

(Miss.)   591;  Tanner  v.  Hicks.  lb.   299;  In  California  it  is  provided  that  where 

Koper  V.  Day,  48  Ala.  509  ;  Sheppard  v.  a  buyer  of  real  property  gives  to  the  seller 

Thomas,  26  Ark.  626  ;  Campbell  v.  Ran-  a  written  contract  for  the  payment  of  all 

kin,  28  Ark.  401  ;  Tharpe  v.  Dunlap,  4  or  part  of  the  price,  an  absolute  transfer 

Heisk.  (Tenn.)  674;  AVells  v.  Morrow,  38  of  such  contract  by  the  seller  waives  his 

Ala.  125;  Kelly  v.  Payne,  18  Ala.  371 ;  lien  to  the  extent  of  the  sum  payable  un- 

Roper  V.  McCook,  7  Ala.  318;    Hall  v.  der  the  contract;  but  a  transfer  of  such 

Click,  5  Ala.  363 ;  Moore  v.  Anders,  14  ^  contract  in  trust  to  pay  debts,  and  return 

Ark.  634;  Shall  v.  Biscoe,  18  Ark.  142;  the  surplus,  is  not  a  waiver  of  the  lien. 

Rakestraw   v.    Hamilton,    14   Iowa,   147;  Civil  Code,  1872,  §  .3047. 

Adams  o.  Cowherd,  30  Mo.  658;  Ferry  v.  ^  Cummings  v.  Oglesby,  50  Miss.  153; 

George,  37   Miss.  539 ;  Robinson  v.  Har-  Pitts  v.  Parker,  44  Miss.  252 ;  Parker  v. 

hour,  42  Miss.  795;  Cleveland  y.  Martin,  Kelly,  10  S.  &  M.  (Miss.)  191;  Skaggs 

2  Head  (Tenn.),  128.  v.  Nelson,  25  Miss.  89;  Connor  v.  Banks, 

Thecases  seem  to  be  uniform  upon  this  18  Ala.  42. 

point,  with  the  exception  of  those  in  Ohio.  ^  Bailey  v.   Smock,  61  Mo.  213;  Mur- 

By  statute  in   Arkansas,  1873,  Acts,  ray  v.  Able,  19  Tex.  213. 

1).  217,  the  lien  is  made  assignable  by  a  ^  Young  v.  Atkins,  4   Heisk.    (Tenn.) 

-.ransforof  the  note  or  other  obligation  for  529. 

ihe  debt,  provided   the  lien    is  expressed  *  Shinn  v.  Fredericks,  56  111.  439. 
upon  the  face  of  the  deed  of  conveyance. 

171 


§§  237-239.]  LIENS   FOR   PURCHASE   MONEY. 

lien  as  is  necessary  to  pay  it,  unless  there  be  an  express  agree- 
ment otherwise.^ 

Such  assignee,  moreover,  is  entitled  to  all  the  remedies  of  the 
vendor  to  enforce  the  lien ;  and  the  latter  cannot  by  any  act  of 
his  deprive  the  assignee  of  these  remedies.^ 

237.  Statute  of  limitations.  —  A  lien  founded  upon  contract 
may  be  enforced,  although  the  debt  be  barred  by  the  statute  of 
limitations. 3 

The  relation  of  a  purchaser  by  title  bond  to  his  vendor,  is  simi- 
lar to  that  of  mortgagor  to  mortgagee,  and  his  possession  is  in  like 
manner  consistent  with  his  obligation  to  pay  the  money  secured, 
and  does  not  become  adverse  except  under  circumstances  which 
would  make  a  mortgagor's  possession  adverse.^ 

238.  No  obligation  first  to  exhaust  the  personal  remedy.  — 
When  the  lien  is  created  by  express  contract,  the  rule  of  equity 
adopted  by  some  courts  as  to  liens  arising  by  implication  of  law, 
that  the  vendor  shall  first  exhaust  his  remedy  against  the  personal 
estate  of  the  vendee,  has  no  application.^ 

239.  Proceedings  to  enforce  such  lien.  —  To  enforce  a  lien  for 
the  purchase  money  reserved  by  the  vendor  in  his  deed,  the  same 
proceedings  are  had  as  in  case  of  a  formal  mortgage.  The  same 
persons  must  be  made  parties.  If  the  vendee  has  sold  any  part 
or  the  whole  of  his  interest,  his  grantee  must  be  made  a  party ; 
and  so  must  any  one  who  has  acquired  a  lien  upon  the  prop- 
erty through  him.^    "  The  rights  of  the  vendee,"  says  Mr.  Justice 

1  McClintic  v.  Wise,   25  Gratt.   (Va.)     bond  or  other  writing  to  convey  it,  and 
448.  part  or  all  the  purchase  money  remains 

2  McClintic  v.  Wise,  supra.  unpaid  after  the  day  fixed  for  payment, 
8  Driver  v.  Hudspeth,  16  Ala.  348.  whether  the  time  is  or  is  not  the  essence 
*  Gudger  v.  Barnes,  4   Heisk.  (Tenn.)     of  the  contract,  may  file  his  petition  ask- 

570,  overruling  Ray  v.  Goodman,  1  Sneed  ing  the  court  to  require  the  purchaser  to 

(Tenn.),  587.  perform  his  contract,  or  to  foreclose  and 

^  Smith   V.   Rowland,    13    Kans.    245;  sell  his  interest  in  the  property.  The  vendee 

Sparks  v.   Hess,    15    Cal.   186,  193;  Mc-  in  such  cases,  for  the  purpose  of  the  fore- 

Caslin  v.  The  State,  44  Ind.  151.  closure,  is  treated  as  a  mortgagor  of  the 

^  King  V.  Young  Men's  Ass'n,  1  Woods,  property  purchased,  and  his  rights  may  be 

386  ;  Gaston  v.  White,  46  Mo.  486.  foreclosed  in  a  similar  manner.     §§  3329, 

In  Iowa  it  is  provided  by  statute  that  3330,  Revision  1873. 
the  vendor  of  real  estate,  who  has  given  a 

172 


THE   vendor's   lien   BY   CONTRACT   OR   RESERVATION.      [§  240. 

Bradley ,1  "  being  the  same  as  those  of  a  mortgagor,  they  must  be 
extinguished  in  the  same  way.  They  are  vested  and  well  defined 
in  the  law.  They  constitute  an  estate  called,  it  is  true,  by  the 
name  of  an  equity  of  redemption  ;  but  still  an  estate  which  may 
be  conveyed  incumbered,  and  laid  under  other  liens.  And  the 
heirs  and  assigns  of  the  vendee  and  subsequent  holders  of  liens  on 
the  property  against  him  cannot  be  discharged  or  ignored  by  the 
original  vendor  or  his  assigns,  when  they  desire  to  extinguish  this 
estate." 

240.  No  tender  of  performance  before  action  necessary.  — 
It  is  no  defence  to  an  equitable  action  to  enforce  a  lien  under  a 
contract  for  unpaid  purchase  money,  that  the  vendor  did  not  ten- 
der a  deed  before  bringing  suit.^  After  the  time  for  the  perform- 
ance of  the  contract  has  passed,  without  any  offer  by  either  party 
to  perform  on  that  day,  there  can  be  no  action  at  law  upon  it  by 
either,  but  either  may  claim  a  specific  performance  in  equity, 
making  an  offer  of  performance  in  the  bill.^  If  an  action  to  fore- 
close the  lien  be  brought,  not  by  the  vendor,  but  by  his  j^ersonal 
representatives,  they  should  show  that  they  are  able  and  willing 
to  give  a  deed,  or  else  make  the  heir  or  devisee  who  holds  the 
legal  title  in  trust  for  the  purchaser  a  party  to  the  suit,  so  that 
he  will  be  bound  by  it.* 

1  King  v.  Young  Men's  Ass'n,  s«75ra.  ^  Bruce  v.  Tilson,  25  N.  Y.  194;  Ste- 

2  Freesonv.  Bissell,  63  N.  Y.  168.  See,  venson  v.  Maxwell,  2  N.  Y.  409.  And  see 
however,  McCaslin  v.  The  State,  44  Ind.  McWiliiams  v.  Brookens,  39  Wis.  334  ; 
151 ;  McKenzie  v.  Baldridge,  49  Ala.  564 ;  Watson  v.  Bell,  45  Ala.  452. 

Turner  v.  Lassiter,  27  Ark.  662  ;  Wakefield        *  Thomson  r.  Smith,  63  N.  Y.  301. 
V.  Johnson,  26  Ark.  506. 

173 


CHAPTER  VII. 

ABSOLUTE  DEED   AJ^D   AGREEMENT   TO   EECONVEY. 

PART   I. 
WHEN    THEY    CONSTITUTE    A   MORTGAGE. 

241.  A  defeasance  is  an  essential  requisite  of  a  mort- 
gage.^ — •  It  may  be  in  the  instrument  of  conversance,  or  in  a  sepa- 
rate writing,  or  it  may  exist  in  parol  merely ;  but  it  must,  never- 
theless, exist  in  some  form.  The  grantor  must  have  a  conditional 
right  to  have  the  property  restored  to  him.  There  must  be  a 
valid  and  binding  agreement  of  some  sort  on  the  part  of  the 
grantee  to  yield  up  the  property  received  by  him,  when  the  con- 
ditions upon  which  the  conveyance  was  made  have  been  per- 
formed, else  there  is  lacking  an  element  indispensable  to  a  mort- 
gage. The  defeasance  must  be  in  favor  of  the  grantor  himself, 
and  not  in  favor  of  any  third  person.  It  does  not  avail  anything 
that'  the  conveyance  contains  a  condition  for  a  reconveyance,  if 
the  reconveyance  is  to  be  made  to  some  one  other  than  the 
grantor ;  whatever  else  such  an  instrument  may  be,  it  is  not  a 
mortgage  ,2 

In  equity  the  rule  is  different,  and  the  transaction  is  a  mort- 
gage, although  the  defeasance  be  to  some  one  other  than  the 
grantor  ;  thus,  for  instance,  it  may  be  in  the  form  of  an  agree- 
ment by  one  person  to  purchase  property  at  a  foreclosure  sale,  or 
other  public  sale,  and  to  hold  it  until  the  purchase  money  be  re- 
paid by  the  party  who  receives  the  agreement.^ 

1    Defeasance    "  is    fetched    from     the  land,  23  Me.   234 ;  Marvin  v.  Titsworth, 

French   word    defaire,  i.  e.   to   defeat   or  10  Wis.  320;  Carr  v.  Rising,  62  111.  19; 

undo;  infectum   reddere  quod  factum  est."  Stephenson   v.   Thompson,    13   111.    186; 

Co.  Lilt.  237  a.  Magnusson  v.  Johnson,  73  111.  156  ;  Flagg 

-  Payne  r.  Patterson,  77  Pa.   St.   134;  v.  Maun,   14  Pick.   (Mass.)    479;    Bick- 

Penn.  Co.  for  Ins.  v.  Austin,  42  Pa.  St.  ford  v.  Daniels,  2  N.  H.  71  ;  Hill  v.  Grant, 

257  ;  Shaw  v.  Erskine,  43  Me.  371 ;  War-  46  N.  Y.  96  ;  Low  v.  Henry,  9  Cal.  538. 
rcn  V.  Lovis,  53  Me.  463  ;  Treat  v.  Strick-        8  gee  §§  268,  331  ;  Weed  v.  Steven- 

174 


ABSOLUTE  DEED  AND   AGREEMENT   TO  RECONVEY.       [§  242. 

At  law,  to  constitute  a  mortgage  the  conveyance  must  be  made 
by  the  mortgagor,  and  the  defeasance  by  the  mortgagee.  A  bond, 
therefore,  made  by  the  grantee  to  his  grantor,  in  consideration  of 
the  conveyance,  and  conditioned  to  support  his  grantor  for  life, 
and  in  case  of  neglect  to  reconvej'^  the  land,  does  not  constitute  a 
mortgage.  If  the  deed  be  made  by  the  person  by  whom  the  con- 
ditions are  to  be  performed,  and  he  take  back  a  bond  for  a  recon- 
veyance on  the  performance  of  the  conditions,  the  transaction  may 
be  a  mortgage.  But  in  the  above  case  the  deed  is  to  the  person 
by  whom  the  conditions  are  to  be  performed,  and  his  bond  is  sim- 
ply a  covenant  to  reconvey,  which  may  be  specifically  enforced  in 
equity.  There  is  no  conveyance  from  the  supposed  mortgagor  to 
the  supposed  mortgagee.  Although  such  a  transaction  is  not  a 
legal  mortgage,  the  bond  may  be  enforced  in  equity  by  a  decree 
for  reconveyance.^ 

242.  The  usual  proviso  in  a  legal  mortgage  is,  that  upon  the 
payment  of  the  debt,  or  performance  of  the  duty  named,  "  then 
this  deed  shall  be  void."  But  any  equivalent  expression  may  be 
used.'^  If  it  appear  from  the  whole  instrument  that  it  was  in- 
tended to  be  a  security  for  the  payment  of  a  debt  or  the  perform- 
ance of  a  duty,  it  is  a  mortgage ;  although  there  be  no  express 
provision  that  upon  the  fulfilment  of  the  condition  the  deed  shall 
be  void.^  The  substance  and  not  the  form  of  the  expression  is 
chiefly  to  be  regarded  ;  and  an  enlarged  and  liberal  view  is  taken 
to  ascertain  and  carry  into  effect  the  intention  of  the  parties.  If 
there  be  in  the  deed  itself,  or  in  any  separate  deed  executed  at 
the  same  time,  and  tonstituting  with  the  conveyance  one  ti-ansac- 
tion,  a  provision  that  the  estate  shall  be  reconveyed  upon  the 
payment  of  the  debt,  such  stipulation  constitutes  a  defeasance  as 
much  as  if  the  words,  "  on  condition,"  or  "  provided  however," 
were  used.* 

son,  Clarke  (N.  Y.)Ch.  166;  Umfrcvillez;.  447.    But  see  Chase  u.  Peck,  21  N.  Y. 

Keeler,  1  Thomp.  &  C.  (N.Y.)  486;  Barton  581,    where    the    grantee    in    such    case 

V.  May,  3Sandf.  (N.  Y.)  Ch.  450;  Sahlery.  pledged  the  land  and  the  produce  of  it. 

Signer,  37  Barb.  (N.  Y.)  329 ;  S.  C.  44  lb.  2  Adams  v.  Stevens,  49  Me.  362. 

606;  McBurney  v.  Wellman,  42  lb.  390;  ^  gteel  v.  Steel,  4  Allen  (Mass.),  417  ; 

Spicer  v.  Hunter,  14  Abb.  (N.  Y.)  Pr.  4;  Lanfair  v.  Lanfair,  18  Pick.  (Mass.)  299. 

Ryan  r.  Dox,  34  N.  Y.  307;  Reigard  v.  ^  Taylor  v.  Weld,  5  Mass.  109;  Scott 

McNeil,  38  111.  400,  and  cases  cited.  v.  McFarland,   13  Mass.  308  ;  Austin  v. 

1  Robinson  17.  Robinson,  9  Gray  (Mass.),  Downer,  25  Vt.  558;  Oldham  r.  Halley, 

175 


§  243.]        ABSOLUTE  DEED   AND   AGREEMENT   TO   RECONVEY. 

Upon  this  principle  a  lease  for  years,  in  which  the  lessor  ac- 
knowledged the  receipt  in  advance  of  a  sum  in  full  for  the  rent  of 
the  premises  during  the  term,  and  in  which  "  the  lessee  covenants, 
promises,  and  agrees  to  reconvey  said  premises  to  the  lessor,  upon 
the  payment  of  the  aforesaid  sum  and  interest  thereon,"  is  a  mort- 
gage, and  the  relation  of  the  parties  is  that  of  mortgagor  and 
mortgagee.^  If  the  lessee  receives  rents  and  profits,  before  the 
term  expires,  to  the  amount  of  the  sum  advanced  by  him,  and  in- 
terest thereon,  his  estate  for  years  is  thereupon  defeated,  and  the 
lessor  is  in  of  his  old  estate. 

The  condition  of  defeasance  need  not  necessarily  be  inserted  in 
the  body  of  the  deed.  It  has  the  same  effect  when  added  under- 
neath in  such  a  way  as  to  be  part  of  the  deed,  or  when  executed 
separately .2  A  condition  written  upon  the  back  of  a  mortgage 
and  not  signed  was  held  to  be  a  part  of  the  deed,  which  was  there- 
fore regarded  as  a  mortgage.^ 

243.  Objections  to  a  separate  defeasance.  —  It  is  sometimes 
for  the  convenience  of  the  parties  to  make  the  defeasance  by  a 
separate  instrument,  so  that  the  grantee,  in  the  absence  of  a  rec- 
ord of  this  instrument,  is  apparently  the  absolute  owner.  This 
form  of  mortgage  has  been  used  sometimes  to  the  prejudice  of  the 
mortgagor,  and  the  courts  have  at  times  discouraged  the  use  of  it 
as  much  as  possible.  Thus  at  an  early  date  Lord  Chancellor  Tal- 
bot observed :  "*  "In  the  northern  parts  it  is  the  custom  in  draw- 
ing mortgages  to  make  an  absolute  deed,  with  a  defeasance  sepa- 
rate from  it ;  but  I  think  it  a  wrong  way,  and  to  me  it  will  always 
appear  with  a  face  of  fraud,  for  the  defeasance  may  be  lost,  and 
then  an  absolute  conveyance  is  set  up.  I  would  discourage  the 
practice  as  much  as  possible."  In  another  case.  Lord  Chancel- 
lor Hardwicke  declared  it  to  be  an  imposition  upon  the  mort- 
gagor not  to  insert  the  provision  for  reconveyance  in  the  deed 
itself.5 

2  J.  J.  Marsh.  (Ky.)  113.     And  see  Fer-  2  Perkins  v.  Dibble,  10  Ohio,  433;  Kent 
guson  V.  Miller,  4  Cal.  97 ;  Whitcomb  v.  v.  Allbritain,  5  Miss.  (4  How.)  317  ;  Bald- 
Sutherland,  18  111.  578.     But  the  instru-  win  v.  Jenkins,  23  Miss.  206. 
ment  is  not  a  mortgage  unless  equivalent  ^  Whitney  v.  French,  25  Vt.  663. 
words  are  used.     Goddard  v.  Coe,  55  Me.  *  In  Cotterel  v.  Purchase,  Cas.  Temp. 
385.  Talbot,  61. 
1  Nugent  V.  Eiley,  1  Met.  (Mass.)  117.  &  Baker  v.  Wind,  1  Ves.  Sen.  160. 

176 


WHEN    THEY    CONSTITUTE   A   MORTGAGE. 


[§  244. 


244.  At  law  an  absolute  deed  and  separate  defeasance  or 
agreement  to  reconvey,  executed  at  the  same  time,  amount  to  a 
mortgage.^ 

A  deed  with  a  bond  or  agreement  to  reconvey  the  estate  upon 
payment  of  a  certain  sum  of  money,  or  upon  the  performance  of 
some  other  condition,  has  always  been  held  to  constitute  a  legal 
mortgage,  if  the  instruments  are  of  the  same  date,  or  are  executed 
and  delivered  at  the  same  time,  and  as  one  transaction.^  A  defea- 
sance made  after  the  record  of  the  deed  is  sufficient  where  the 
deed  was  made  without  the  knowledge  of  the  grantee,  and  the 
obligation  to  reconvey  was  made  upon  his  being  informed  of  it.-^ 
When  the  deed  and  defeasance  are  executed  at  the  same  time,  or 
are  agreed  upon  at  the  same  time,  it  is  a  conclusion  of  law  that 
they  constitute  a  legal  mortgage."* 

The  instrument  of  defeasance  must  be  of  as  high  a  nature  as  the 
deed  itself ;  and  consequently  a  written  agreement  to  reconvey  not 


1  Dow  V.  Chamberlin,  5  McLean,  281  ; 
Bayley  v.  Bailey,  5  Gray  (Mass.),  505; 
Judd  V.  Flint,  4  lb.  557;  Murphy  v.  Gal- 
ley, 1  Allen  (Mass.),  107;  Decker  r. Leon- 
ard, 6  Lans.  (N.  Y.)  264;  Lane  v. 
Shears,  1  Wend.  (N.  Y.)  433  ;  Peterson  v. 
Clark,  15  Johns.  (N.  Y.)  205;  Clark  v. 
Henry,  2  Cow.  (N.  Y.)  324 ;  S.  C.  7  Johns. 
Ch.  40  ;  Brown  v.  Dean,  3  Wend.  (N.  Y.) 
208;  Hall  w.  Van  Cleve,  11  N.  Y.  Leg. 
Obs.  281  ;  Weed  v.  Stevenson,  Clarke 
(N.  Y.)  166;  Friedley  v.  Hamilton,  17  S. 
&  R.  70;  Manufacturers',  &c.  Bank,  v. 
Bank  of  Pa.  7  W.  &  S.  (Pa.)  335  ;  Guth- 
rie V.  Kahle,  46  Pa.  St.  331  ;  Houser  v. 
Lamont,  55  Pa.  St.  311  ;  Kerr  v.  Gilmore, 
6  Watts  (Pa.),  405  ;  Colwell  v.  Woods,  3 
lb.  188;  Stoever  v.  Stoever,  9  S.  &  R. 
(Pa.)  434 ;  Johnston  i;.  Gray,  16  lb.  361  ; 
Jaques  v.  Weeks,  7  Watts  (Pa.)  261  ;  Ar- 
chambau  r.  Green,  21  Minn.  520;  Walker 
V.  Tiffin  Mining  Co.  2  Colo.  T.  89 ;  Shaw 
V.  Erskine,  43  Me.  371  ;  Warren  v.  Lovis, 
53  Me.  463;  Blaney  v.  Bearce,  2  Me. 
(2  Greenl.)  132 ;  Mills  v.  Darling,  43 
Me.  565 ;  Plato  v.  Roe,  14  Wis.  453  ;  Sec- 
ond Ward  Bank  v.  Upmann,  12  Wis.  499  ; 
Knowlton  v.  Walker,  13  Wis.  264 ;  Free- 
man V.  Baldwin,  13  Ala.  246  ;  Preschbaker 
V.  Feaman,  32  III.  475 ;  Ewart  i'.  Walling, 

VOL.  I.  12 


42  111.  453  ;  Sharkey  v.  Sharkey,  47  Mo. 
543;  Copeland  v.  Yoakum,  38  Mo.  349; 
Robinson  v.  Willoughby,  65  N.  C.  520 ; 
Mason  r.  Hearne,  1  Busb.  (N.  C)  Eq.  88; 
Hammonds  v.  Hopkins,  3  Yerg.  (Tenn.) 
525  ;  Baxter  v.  Dear,  24  Tex.  17  ;  Harri- 
son y.  Lemon,  3  Blackf.  (Ind.)  51;  Wat- 
kins  V.  Gregory,  6  lb.  113;  Crasson  v. 
Swoveland,  22  Ind.  427 ;  Caruthers  v. 
Hunt,  18  Iowa,  576;  Ogden  v.  Grant,  6 
Dana  (Ky),  473  ;  Edrington  r.  Harper,  3 
J.  J.  Marsh  (Ky.),  353;  Honore  v.  Hutch- 
ings,  8  Bush.  (Ky.),  687  ;  Enos  v.  Suther- 
land, 11  Mich.  538;  Marshall  v.  Stewart, 
17  Ohio,  356;  Reynolds  v.  Scott,  Brayt. 
(Vt.)  75;  Clark  v.  Lyon,  46  Ga.  203; 
Hill  V.  Edwards,  11  Minn.  22. 

2  Nugent  V.  Riley,  1  Met.  (Mass.)  117  ; 
Erskine  v.  Townsend,  2  Mass.  493  ;  Taylor 
V.  Weld,  5  Mass.  109  ;  Scott  v.  McFarland, 
13  Mass.  308  ;  Newhall  v.  Burt,  7  Pick. 
(Mass.)  157  ;  Stocking  v.  Fairchild,  5  lb. 
181  ;  Eaton  v.  Whiting,  3  lb.  484;  Lan- 
fair  V.  Lanfair,  18  lb.  299. 

8  Harrison  v.  Phillips  Academy,  12 
Mass.  456. 

*  Wilson  V.  Shoenberger,  31  Pa.  St. 
295 ;  Reitenbaugh  v.  Ludwick,  31  Pa.  St. 
131. 

177 


§  245.]    ABSOLUTE  DEED  AND  AGREEMENT  TO  RECONVEY. 

under  seal,  though  made  at  the  same  time  with  the  deed,  does  not 
at|law  constitute  a  mortgage.^  If  not  under  seal,  the  agreement 
will  constitute  a  mortgage  only  in  equity .^  The  defeasance  must 
also  be  absolute.  A  contract  which  gives  the  grantee  the  option 
to  reconvey,  or  pay  a  sum  of  money,  is  not  a  defeasance,  which  in 
connection  with  the  deed  will  constitute  a  mortgage.  The  fee  is 
absolute  in  the  grantee  if  he  so  elect.^ 

245.  At  law  the  deed  and  defeasance  must  be  part  of  the 
same  transaction,  and  must  take  effect  at  the  same  time.*  A 
subsequent  defeasance  cannot  be  allowed  to  affect  the  prior  con- 
veyance. The  transaction  must  be  a  mortgage  at  its  inception, 
and  cannot  become  so  afterwards.  The  defeasance  must  be  such 
that  it  may  be  considered  as  if  it  were  annexed  to,  or  inserted  in, 
the  same  deed,  and  construed  as  containing  the  condition  upon  the 
performance  of  which  the  estate  may  be  defeated.^ 

If  at  the  time  of  executing  an  absolute  deed  the  parties  verbally 
agree  that  a  defeasance  shall  be  executed  subsequently,  on  request, 
such  defeasance  when  executed  will  relate  back  to  the  deed,  and 
make  it  a  mortgage.^ 

It  is  not  necessary  that  the  deed  and  bond  of  defeasance  should 
both  bear  the  same  date.'^  If  these  have  once  been  given,  and  a 
reconveyance  made  in  accordance  with  the  terms  of  the  bond, 
and  subsequently  the  premises  are  reconveyed  to  the  obligor,  un- 
der an  agreement  that  the  same  bond  shall  continue  in  force  for 
another  reconveyance,  this  amounts  to  a  redelivery  of  the  bond, 
and  makes  the  transaction  a  mortgage.^  Where  the  defeasance 
is  of  a  different  date  from  the  deed,  parol  evidence  is  admissible 

1  Murphy  v.  Galley  1  Allen  (Mass.),  107  ;  ^  Fuller  v.  Pratt,  10  Me.  197. 
Kelleran  v.  Brown,  4  Mass.  443  ;  Flint  v.  *  Bennock   v.    Whipple,    12    Me.   346; 
Sheldon,  13  Mass.  443  ;  Cutler  v.  Dickin-  McLaughlin  v.  Shepherd,  32  Me.  143. 
son,  8  Pick.  (Mass.)  386;  Flagg  r.  Mann,  ^  Murphy  v.   Galley,   1   Allen  (Mass.), 
14  lb.  467  ;    Scituate  v.  Hanover,  16  lb.  107,  and  cases  cited. 

222;  Jewett  v.  Bailey,  5  Me.  87;  French  ^  Lovering  v.   Fogg.  18  Pick.   (Mass.) 

V.  Sturdivant,  8  Me.  246 ;  Warren  i;.  Lovis,  540  ;  and  see  Scott  v.  Henry,  13  Ark.  112  ; 

53   Me.  463.    See,  however,  Harrison   v.  contra,  Lund  v.  Lund,  1  N.  H.  39. 

Phillips  Academy,  12  Mass.  456  ;  Runlet  ^  Harrison     v.   Phillips   Academy,    12 

t;.  Otis,  2  N.  H.  167.  Mass.   456;    Newhall    v.    Burt.    7    Pick. 

2  Flagg  V.  Mann,  14  Pick.  (Mass.)  467  ;  (Mass.)  157. 

Eaton   V.   Green,   22   lb.  526 ;  Gutler   v.  ^  Mclntier  v.  Shaw,  6  Allen  (Mass.), 

Dickinson,  8  lb.  386  ;  Kelleran  v.  Brown,  83.     See  Judd  v.  Flint,  4  Gray  (Mass.), 

4  Mass.  443.  557. 
178 


WHEN  THEY   CONSTITUTE   A   MORTGAGE.      [§§  246,  247. 

to  prove  that  they  were  delivered  at  the  same  time,  and  are  part 
of  the  same  transaction.^  It  is  not  necessary  that  the  deed  and 
defeasance  should  in  terms  refer  to  each  other.  Their  connection 
may  be  established  by  parol  evidence .^ 

246.  To  be  delivered  at  same  time.  —  The  defeasance  must 
be  signed,  sealed,  and  delivered  at  the  same  time  with  the  deed  to 
which  it  refers.  Although  it  is  not  material  that  the  instruments 
should  bear  the  same  date,  it  is  essential  that  they  be  delivered 
at  the  same  time.^  In  equity  it  is  immaterial  that  the  deeds  and 
the  agreement  to  reconvey  are  executed  at  different  times  ;  and, 
as  will  be  noticed  elsewhere,  it  is  immaterial  that  there  be  any 
bond  or  agreement  to  reconvey,  parol  evidence  being  sufficient  to 
prove  the  transaction  to  be  a  mortgage.^  When  made  subse- 
quently, it  must  be  based  on  a  sufficient  consideration,  unless  it 
be  professedly  executed  in  explanation  of  the  intention  of  the 
parties  at  the  time  of  the  conveyance,  and  of  the  true  character 
of  the  instrument.  A  mere  voluntary  agreement  to  reconvey  can- 
not be  enforced.^ 

247.  If  the  agreement  to  reconvey  be  delivered  as  an 
escrow,  to  be  delivered  to  the  obligee  upon  the  repayment  of  the 
money  within  a  certain  time,  it  is  not  executed  and  delivered  at 
the  same  time  with  the  deed,  so  as  to  constitute  part  of  the  same 
transaction,  and  therefore  the  transaction  is  not  a  mortgage.^  A 
conveyance  absolute  on  its  face  was  made  to  one  who  advanced 
money  to  the  grantor,  and  at  the  same  time  executed  an  agree- 
ment to  reconvey  the  land,  upon  repayment  of  the  money  ad- 
vanced, within  thirty  days  ;  and  both  instruments  were  placed  in 
the  hands  of  a  third  person,  with  instructions,  that  if  repayment 
was  not  so  made  to  deliver  both  instruments  to  the  grantee.     The 

1  Brown  u.  Holyoke,  53  Me.  9.  411.     The  case  of  Carey   v.  Rawson,  8 

'-  Preschbaker  v.  Feaman,  32  111.  475.  Mass.  159,  in  apparent  conflict  with  the 

8  See    §    277 ;   Kelleran    v.   Brown,  4  above,  is  explained  on  the  ground  that  the 

Mass.  443  ;  Kelly  v.  Thompson,  7  Watts  deed  in  that  case  was  not  delivered  as  an 

(Pa.),  401  ;  Haines  v.  Thomson,  70  Pa.  St.  escrow,  but  as  a  deed  taking  efi^ct  pres- 

434.                                                   ^  ently,   without    the    performance   of    the 

*  See  chapter    viii. ;    Walker  v.  Tiffin  conditions  ;    but  in  Bodwell  v.   Webster, 

Mining  Co.  2  Col.  89;  Scott  v.  Henry,  13  the  bond  having  been  delivered  in  escrow. 

Ark.  112.  and  the  conditions  never  being  performed, 

^  Vasser  v.  Vasser,  23  Miss.  378.  it  was  never  delivered  to  the  obligee.     See 

"  Bodwell  V.  Webster,  13  Pick.  (Mass.)  Exton  v.  Scott,  6  Sim.  31. 

179 


§   248.]         ABSOLUTE   DEED    AND   AGREEMENT    TO   KECONVEY. 

money  not  being  repaid,  both  instruments,  after  the  default,  were 
delivered  to  the  grantee,  the  grantor  so  directing.  It  was  held 
that  the  deed,  on  its  delivery  to  the  grantee,  conveyed  the  land 
to  him  absolutely,  and  was  not  a  mortgage.  The  maxim,  "  Once 
a  mortgage,  always  a  mortgage,"  was  declared  inapplicable  to 
the  case,  because  the  conveyance  never  was  a  mortgage.  The 
transaction  was  to  the  effect,  that  if  the  advance  was  repaid  in 
thirty  days  it  should  be  a  loan  ;  but  if  not  repaid  in  that  time,  it 
should  be  the  consideration  for  an  absolute  conveyance  of  the 
land  in  question. ^ 

248.  Parol  evidence  to  connect  the  deed  and  defeasance. 
Parol  evidence  is  admissible  to  show  that  an  absolute  deed  and 
a  separate  defeasance  are  parts  of  the  same  transaction,  and  that 
together  they  were  intended  to  constitute  a  mortgage.^  Such 
proof  is  introduced  not  to  contradict  or  vary  the  writings,  but  to 
show  that  they  are  really  one  arrangement,  and  were  agreed  upon 
at  the  same  time.^  Parol  evidence  is  also  admissible  to  show  that 
the  defeasance  has  been  lost  or  destroyed  by  fraud  or  mistake."^ 

When  the  conveyance  and  the  agreement  to  reconvey  on  pay- 
ment of  the  purchase  money  are  on  their  face  of  even  date,  the 
transaction  is  necessarily  a  mortgage,  and  parol  evidence  of  a  dif- 
ferent understanding  by  the  parties  will  not  be  received  to  con- 
vert it  into  a  conditional  sale.^  When  the  two  instruments  are 
of  different  dates,  such  evidence  is  admissible.  If  the  agreement 
recite  that  it  was  delivered  on  the  same  day  with  the  agreement, 
although  the  dates  are  different,  p7'imd  facie  the  transaction  is  a 
mortgage  ;  but  evidence  is  admissible  to  account  for  the  discre- 
pancy between  the  dates  and  the  execution  of  the  paper  ;  and 
such  evidence  may  show  that  the  deed  was  executed  upon  a  sale, 
and  not  as  security.*^     If  it  be  acknowledged  or  proved  that  it  was 

1  Glendenning  w.  Johnston,  33  "Wis.  347.  *  Marks  t;.  Pell,  1  Johns.  (N.  Y.)  Ch. 
See  Leggett  v.   Edwards,  Hopk.  (N.  Y.)     594. 

Ch.  530  ;  Henley  v.  Hotaling,  41   Cal.  22,  5  Kerr  v.  Gilmore,  6  Watts  (Pa.),  405  ; 

28.  Brown  v.  Nickle,  6  Pa.    St.  390.     In  the 

2  Gay  V.  Hamilton,  33  Cal.  686 ;  latter  case  it  was  remarked  that  Kerr  v. 
Preschbaker  v.  Feaman,  32  111.  475 ;  Till-  Gilmore  "  pushed  the  doctrine  to  its  ut- 
son   V.   Monlton,   23    111.    648 ;    Kelly   v.  most  verge." 

Thompson,  7  Watts  (Pa.),  401.  ^  Haines  v.  Thomson,  70  Pa.   St.  434. 

3  Reitenbaugh  w.  Ludwick,  31  Pa.   St.  See   Baisch  v.   Oakeley,  68  Pa.    St.   92; 
131,    138;  Wilson    v.    Shoenberger,    lb.  Gubbings  y.  Harper,  7  Phil.  (Pa.)  276. 
295. 

180 


WHEN   THEY   CONSTITUTE  A  MORTGAGE.      [§§  249,  250. 

in  the  beginning  a  sale,  the  burden  of  proof  is  upon   the  grantor 
to  establish  a  change  in  its  character.^ 

249.  If  the  defeasance  express  a  condition  that  is  illegal,  or 
contrarj^  to  pubHc  policy,  as  where  the  grantee  stipulated  that  if 
he  should  not  procure  two  witnesses  to  testify  to  a  certain  state  of 
facts,  the  deed  should  be  null  and  void,  the  transaction  was  held 
not  to  constitute  a  mortgage,  because  the  legal  estate  having  once 
vested  in  the  grantee,  it  could  not  be  divested  by  his  fa  lure  to 
perform  the  illegal  stipulation,  but  the  deed  to  him  became  and 
remained  absolute.^ 

250.  When  it  is  once  established  that  the  separate  instru- 
ment is  a  defeasance,  the  conveyance  assumes  the  character  of  a 
mortgage  with  the  inseparable  incident  of  redemption,  which  no 
agreement  of  the  parties  that  the  estate  shall  be  absolute,  if  the 
money  be  not  paid  at  the  day  fixed,  can  waive.  The  intent  of  the 
parties  contrary  to  the  rules  of  law  avails  nothing.  The  right  of 
redemption,  therefore,  cannot  be  affected  by  receipts  and  accounts 
given  by  the  grantor  to  the  grantee,  mentioning  the  deed  as  an 
absolute  conveyance.^  In  all  cases,  a  condition  express  or  implied 
that  the  deed  shall  be  void  if  payment  be  made  at  the  day,  is  in 
equity  regarded  as  substantially  performed  by  a  subsequent  pay- 
ment, and  thereupon  reconveyance  may  be  enforced.* 

1  Haines  v.  Thomson,  sttpra.  Anthony  v.  Anthony,  23  Ark.  480  ;  Hun- 

2  Patterson  v.  Donner,  48  Cal.  369.  ter  v.  Hatch,  45  111.  178;  Ewart  v.  Wal- 
8  Bayley    v.   Bailey,    .5    Gray   (Mass.),     ling,  42  111.  453;  Reigard  v.  McNeil,  38 

505.  111.  400  ;  Tillson  v.  Moulton,  23  111.  648 ; 

*  Mclntier   i\  Shaw,    6   Allen    (Mass.),  Church  y.  Cole,  36  Ind.  35  ;  Howe  ?;.  Rus- 

83;  Parks  r.  Hall,  2  Pick.  (Mass.)   211;  sell,  36  Me.  115;  Nichols  r.  Reynolds,  1 

Steel  V.  Steel,  4  Allen  (Mass.),  417  ;  Sweet  R.  I.  30;  Yasser  v.  Yasser,  23  Miss.  378  ; 

r.  Parker,    7   C,  E.    Green    (N.    J.),  453;  Wright  v.  Bates,    13    Yt.   341;  Mott  v. 

Judge  V.  Reese,  9  lb.  387  ;  De  Camp  v.  Harrington,  12  Yt.  199  ;  Davis  v.  Clay,  2 

Crane,  19  N.  J.  Eq.  166;  Yanderhaise  v.  Mo.    161;  Wilson   v.   Drumrite,   21    Mo. 

Hugues,  2   Beas.    (N.  J.)  Eq.   224,  410;  325;    Somersworth  v.   Roberts,  38  N.   H. 

Clark  V.  Lyon,  46   Ga.    202;    Wilson  r.  22;  Pheonix  v.  Gardner,  13  Minn.  430; 

Patrick,  34  Iowa,  362;    HoUiday  v.  Ar-  Yates  v.  Yates,  21    Wis.   473;  Rogan  v. 

thur,   25    Iowa,    19  ;  Richardson  v.   Bar-  Walker,  1  Wis.  527  ;  Bingham  v.  Thomp- 

rick,    16   Iowa,   407;  Moore   v.  Wade,   8  son,   4   Nev.    224;  Cotterell  v.  Long,  20 

Kans.  381;    Sweetzer's  App.   71   Pa.  St.  Ohio,  464  ;  Miami,  &c.  Co.  v.  U.  S.  Bank, 

264  ;  Danzeisen's  App.  73  lb.  65  ;  Harper's  Wright    (Ohio),  249  ;  Bennett  v.  Union 

App.  64  lb.  315;  Odenhaugh  v.  Bradford,  Bank,  5  Humph.  (Tenn.)  612  ;  McGan  v. 

67  Pa.  St.  96;  Halo  v.  Schick,  57  Pa.  St.  Marshall,  7  lb.  121  ;  Webb  v.  Patterson, 

320  ;  Baugher  v.  Merryman,  32  Md.  186  ;  7  lb.  431 ;  Hinson  v.  Partee,  11  lb.  587. 

181 


§  251.]  ABSOLUTE    DEED    AND   AGREEMENT   TO   RECONVEY. 

Neither  can  the  right  of  redemption  be  restricted  to  the  mort- 
gagee personally,  as  such  a  restriction  is  inconsistent  with  the 
nature  of  a  mortgage  and  void.^ 

A  deed  absolute  in  form,  with  an  agreement  under  seal  made 
by  the  grantee  at  the  same  time,  promising  to  reconvey  within  a 
specified  time,  upon  repayment  of  the  sum  paid  for  the  deed,  with 
interest,  constitutes  a  mortgage,  although  it  is  stipulated,  that  if 
the  grantor  fails  to  repay  the  sum  within  the  time  specified,  the 
agreement  shall  be  void  and  the  deed  absolute,  "  with  no  right  of 
redemption."  This  latter  provision  is,  in  fact,  regarded  as  quite 
decisive  of  the  understanding  of  the  parties  that  the  transaction 
was  a  conveyance  of  the  estate,  defeasible  upon  the  payment  of 
money.^ 

251.  The  mortgagor  not  allowed  to  renounce  beforehand  his 
privilege  of  redemption.  —  Generally,  every  one  may  renounce 
any  privilege  or  surrender  any  right  he  has ;  but  an  exception  is 
made  in  favor  of  debtors  who  have  mortgaged  their  property,  for 
the  reason  that  their  necessities  often  drive  them  to  make  ruinous 
concessions  in  order  to  raise  money.  When  one  borrows  money 
upon  the  security  of  his  pi'operty  he  is  not  allowed  by  any  form 
of  words  to  preclude  himself  from  redeeming.^  He  cannot  agree 
that  upon  default  his  mortgage  shall  become  an  absolute  convey- 
ance. A  subsequent  agreement,  that  what  was  originally  a  mort- 
gage shall  be  regarded  as  an  absolute  conveyance,  is  open  to  the 
same  objection,  and  will  not  be  sustained  unless  fairly  made,  and 
no  undue  advantage  is  taken  by  the  creditor. **  The  burden  is 
therefore  upon  the  creditor  to  show  that  the  right  of  redemption 
was  given  up  deliberately,  and  for  an  adequate  consideration.^ 
Generally,  when  the  consideration  of  the  conveyance  was  an  exist- 
ing debt,  a  provision  that  if  the  amount  required  for  a  repurchase 

1  Johnston  v.  Gray,  16  S.   &  R.   (Pa.)  v.  Farrelly,  16  Ala.  472;  Clark  v.  Condit, 

361 ;  and  see  McClurkan  v.  Thompson,  69  18  N.  J.  Eq.  358  ;  Youle  v.  Richards,  1  N. 

Pa.  St.  305.  J.  Eq.  (Sax.)  534. 

^  Murphy   v.    Galley,  1  Allen    (Mass.),         *  Henry  v.  Davis,  7  Johns.  (N.  Y.)   Ch. 

107,  and  cases  cited.  40 ;  Wright  v.  Bates,  13  Vt.  341  ;  Mills  v. 

8  Seechapter  xxii.  on  "Redemption;"  Mills,  26  Conn.  213. 
Clarkr.Henry,  2  Cow.  (N.  Y.)  324;  Ran-         &  Villa  v.    Rodriguez,    12    Wall.   323; 

kin    V.   Morlimere,  7  Watts   (Pa.),   372;  Locke  ?;.  Palmer,  26  Ala.  312;  Brown  v. 

Cherry  v.  Bo  wen,  4  Sneed  (Tenn.),  415;  Gaffney,  28  111.   150;  Baugher  ?;.  Merry- 
Pierce  v.  Robinson,  13  Cal.  125  ;  Robinson  .  man,  32  Md.  185. 

182 


WHEN   THEY    CONSTITUTE   A   MORTGAGE.  [§  252. 

be  not  paid  at  the  time  specified,  the  agreement  for  repiu-chase 
shall  be  null  and  void,  or  there  shall  be  no  redemption  afterwards, 
is  looked  upon  as  a  device  to  deprive  the  debtor  of  his  riglit  of 
redemption,  and  is  therefore  disregarded. ^ 

252.  Cancellation  of  defeasance.  —  A  deed  of  defeasance, 
made  at  the  same  time  with  an  absolute  deed,  may  aftervvards, 
upon  sutficient  consideration,  be  cancelled  so  as  to  give  an  abso- 
lute title  to  the  mortgagee,  if  no  rights  of  third  parties  have  inter- 
vened ;  but  no  agreement  can  be  made  at  the  time  of  creating  the 
mortgage  that  will  entitle  the  mortgagee  at  his  election  to  hold 
the  estate  free  from  condition,  and  not  subject  to  redemption. ^ 
Thus,  if  it  be  agreed  that  the  grantee,  whenever  he  shall  be  com- 
pelled to  pay  certain  liabilities  against  which  the  deed  was  given 
as  security,  may  then  take  immediate  possession  of  the  estates, 
according  to  certain  estimated  values,  to  such  an  extent  as  shall 
be  equal  to  the  debt  or  liability  so  paid  b}^  him,  this  stipulation 
does  not  change  the  nature  of  the  transaction,  which  must  still  be 
treated  as  a  mortgage.^ 

If  the  original  bond  of  defeasance,  which  was  given  at  the  time 
of  taking  the  deed,  be  sui'rendered  and  destroyed  at  the  expiration 
of  the  time  limited  therein,  and  a  new  bond  be  given  upon  a  con- 
sideration partly  new,  by  which  the  grantee  agrees  to  reconvey 
the  premises  upon  the  payment,  within  an  additional  time,  of  a 
larger  sum,  the  grantor  thereby  surrenders  his  title  as  mortgagor, 
and  the  grantee  becomes  the  owner  in  fee  of  the  land.*  If  the 
original  bond  be  given  up,  and  a  new  bond  to  a  third  person  exe- 
cuted in  place  of  it,  the  transaction  loses  its  character  of  a  mort- 
gage. 

When  once  the  defeasance  has  been  delivered  up  for  a  valid 
consideration  to  be  cancelled,  and  the  original  transaction  is  thus 
confirmed  as  a  sale,  and  is  treated  as  such  by  the  grantor  or  his 
heirs,  it  cannot  afterwards  be  treated  as  a  mortgage  and  fore- 
closed.^ 

■  1  Enos  V.  Sutherland,    1 1    Mich.   538 ;  ■*  Falis  v.  Conway  Mut.  Fire  Ins.  Co.  7 

Batty  ?;.  Snook,  5  Mich.  231.  Allen    (Mass.),  46  ;  Maxfield  i'.   Patchen, 

2  Trull   V.   Skinner,    17    Pick.    (Mass.)  29  III.  42 ;  Carpenter  i?.  Carpenter,  70  III. 

213;    Harrison  v.  Phillips  Academy,   12  457;  Rice  i-.  Rice,  4  Pick.   (Mass.)    350, 

Mass.  456.  note. 

8  Waters  v.  Randall,  6   Met.    (Mass.)  ^  Shubert  v.  Stanley,  52  Ind.  46. 
479. 

183 


§§  253,  254.]    ABSOLUTE   DEED   AND   AGREEMENT   TO   RECONVEY. 

253.  Recording  of  separate  defeasance.  —  In  several  states 
it  is  provided  by  statute  that  a  bond  of  defeasance  sliall  not  de- 
feat an  absolute  estate  against  any  one  except  the  maker,  unless 
recorded.  If  the  bond  be  not  recorded  a  person  having  no  knowl- 
edge of  it  may  of  course  purchase  the  property,  or  attach  it  as  be- 
longing absolutely  to  the  grantee ;  but  if  he  has  actual  notice  of 
the  bond  as  constituting  a  part  of  the  transaction  of  the  convey- 
ance, any  right  he  acquires  in  the  property  is  subject  to  the  mort- 
gage created  by  the  bond.^  The  recording  of  the  defeasance  is 
not  necessary  in  order  to  give  it  full  effect  as  between  the  parties 
themselves,^  but  only  as  against  other  persons  ;  and  as  against 
them  it  is  not  necessary  when  the  conveyance  on  its  face  does  not 
purport  to  be  absolute.^ 

Under  such  statutes  it  is  held  that  a  separate  defeasance  not 
recorded  cannot  be  introduced  in  evidence  to  show  that  an  abso- 
lute conveyance  is  a  mortgage,  for  the  court  cannot  assume  or 
know  that  it  ever  would  be  recorded ;  but  it  will  have  that  effect 
if  recorded  at  any  time  before  it  is  introduced  in  evidence.*  No- 
tice of  the  existence  of  a  bond  of  defeasance  is  not  to  be  inferred 
from  the  fact  alone  that  the  grantor  continues  in  possession  after 
the  deed  given  by  him  has  been  recorded.^  To  constitute  notice 
of  a  legal  mortgage  as  distinguished  from  one  that  is  equitable 
merely,  a  purchaser  must  have  reason  to  believe  that  the  convey- 
ance and  bond  were  executed  and  delivered  so  as  to  form  one 
transaction.^ 

254.  "Whether  the  record  furnishes  notice  of  the  natdre  of 
the  transaction.  —  Although  the  instruments  may  in  fact  consti- 
tute a  mortgage  as  between  the  parties,  yet,  if  they  do  not  of 
themselves  show  that  they  are  parts  of  one  transaction,  but  are 
executed  on  different  days,  and  each  is  complete  in  itself,  and  in- 
dependent of  the  other,  the  record  of  them  is  not  notice  to  a  sub- 
sequent purchaser  that  they  constitute  a  mortgage.     He  is  bound 

1  Newhall  v.  Pierce,  5  Pick.  (Mass.)  3  Russell  v.  Waite,  "Walk.  (Mich.)  Ch. 
450;  Newhall   v.   Burt,   7   Pick.    (Mass.)     31. 

157;    Purrington  w.  Pierce,  38  Me.  447;  *  Tomlinson  v.  Insurance  Co.  47  Me. 

Friedley  v.  Hamilton,  17  S.  &  R.  (Pa.)  70;  232  ;  Smith  v.  Mut.  Fire  Ins.  Co.   50  Me. 

Manufacturers'    &    Merchants'   Bank    v.  96. 

Bank  of  Pa.  7  W.  &  S.  (Pa.)  335.  5  Newhall   v.   Pierce,    5    Pick.    (Mass.) 

2  Bayley  v.  Bailey,  5  Gray  (Mass.),  505,  450. 

510 ;  Jackson  v.  Ford,  40  Me.  381.  6  Newhall  v.  Burt,  7  Pick.  (Mass.)  157. 

184 


WHEN   THEY    CONSTITUTE   A    CONDITIONAL   SALE.       [§§  255,  256. 

only  by  what  appears  of  record,  and  he  has  a  right  to  assume 
from  the  record  in  such  case  that  there  was  an  absokite  sale 
merely,  with  a  subsequent  agreement  for  repurchase. ^  It  is  usual, 
however,  to  make  such  reference  in  the  bond  to  the  debt  secured, 
or  to  the  deed  or  conveyance,  that  it  is  apparent  from  the  con- 
struction of  these  instruments  alone  that  the  transaction  was  a 
mortgage,  and  a  purchaser  is  then  bound  accordingly.^  In  1736, 
land  was  conveyed  by  an  absolute  deed,  and  the  grantee,  in  1742, 
conveyed  the  land  b}'  a  deed  in  which  it  was  recited  that  his 
grantee  had  purchased  the  first  grantor's  right  of  redemption. 
This  recital,  however,  was  held  to  be  no  ground  for  presuming 
that  the  first  deed  was  a  mortgage.^ 

255.  Notice  by  possession.  —  When  the  mortgage  is  effected 
by  an  absolute  deed  accompanied  by  a  separate  defeasance,  posses- 
sion and  actual  occupation  by  the  mortgagor  is  sufficient  to  put  a 
purchaser  from  the  grantee  upon  inquiry,  and  to  charge  him  with 
notice  of  the  mortgagor's  rights.*  Such  possession  is  notice  to  all 
the  world  of  any  claim  which  he,  who  is  in  possession,  has  upon 
the 'land.  It  is  not  to  be  supposed  that  any  man,  who  wishes  in 
good  faith  to  purchase  the  land,  will  do  so  without  knowing  what 
are  the  claims  of  a  person  who  is  in  open  possession.  He  is 
chargeable,  therefore,  with  knowledge  of  such  claims.^  A  convey- 
ance of  the  premises  by  the  mortgagee  to  a  third  person  amounts 
to  an  assignment  of  the  mortgage  only  if  the  grantee  has  notice  in 
any  way  of  defeasance.^ 

PART  II. 

WHEN   THEY   CONSTITUTE  A  CONDITIONAL    SALE. 

256.  The  advantage  of  considering  the  transaction  a  mort- 
gage is  not  all  on  the  side  of  the  grantor ;  and  as  between  a  mort- 
gage and  a  conditional  sale,  the  latter  may  be  the  more  for  his 
benefit.  In  this  way  he  avoids  the  continuance,  or  the  incurring, 
of  a  debt.  If  at  the  close  of  the  time  limited  for  reconveyance 
he  is  not  in  condition  to  perform  the  contract,  or  does  not  desire 
to,  there  is  no  obligation  resting  upon  him  to  do  so.     It  is  his  op- 

1  Weide  v.  Gehl,  21  Minn.  449.  *  Daubenspeck  v.  Piatt,  22  Cal.  330. 

2  Hill  V.  Edwards,  11  Minn.  22.  5  Pritchard  ?•.  Brown,  4  N.  H.  397. 
8  King  V.  Little,  1  Cush.  (Mass.)  436.             c  Halsey  v.  Martin,  22  Cal.  645. 

185 


§§  257,  258.]       ABSOLUTE   DEED    AND    AGREEMENT    TO    RECONVEY. 

tion  to  repui'chase  or  not.  But  if  the  transaction  be  a  mortgage 
in  the  beginning  it  is  always  a  mortgage.  The  grantor  is  not  al- 
lowed to  speculate  upon  the  chances  attending  the  transaction,  and 
upon  finding  that  the  property  is  not  worth  the  amount  of  the  debt 
to  call  a  mortgage  a  conditional  sale  ;  or  on  the  other  hand,  when 
he  finds  that  the  property  has  increased  in  value,  and  that  there 
would  be  an  advantage  in  redeeming,  to  call  what  was  actually 
a  conditional  sale  a  mortgage.  The  character  of  the  transaction 
is  fixed  at  its  inception. 

257.  Cases  involving  the  distinction  between  mortgages 
and  conditional  sales  are  usually  brought  before  coiirts  of 
equity  for  adjudication.  At  law,  as  has  already  been  noticed,  an 
agreement  for  a  reconveyance,  to  constitute  a  defeasance  and  make 
the  transaction  a  mortgage,  must  be  executed  at  the  same  time 
with  the  conveyance,  and  as  a  part  of  the  same  transaction,  and 
must  be  under  seal ;  while  in  equity  any  evidence,  whether  it  be 
in  writing  or  merely  parol,  which  clearly  shows  that  the  convey- 
ance was,  in  fact,  intended  only  as  a  security,  will  make  the 
transaction  a  mortgage  ;  and  if  there  be  a  written  agreement'  for 
reconveyance,  it  matters  not  how  informal  it  may  be,  or  wdien  it 
was  executed. 1  It  follows,  therefore,  that  a  court  of  equity  will 
often  pronounce  that  to  be  an  equitable  mortgage  which,  at  law, 
would  be  considered  a  conditional  sale.  "  A  court  of  law,"  says 
Judge  Story ,2  "  may  be  compelled,  in  many  cases,  to  say  that 
there  is  no  mortgage,  when  a  court  of  equity  would  not  hesitate  a 
moment  in  pronouncing  that  there  is  an  equitable  mortgage." 

258.  Intention  the  criterion.  —  Whether  a  conveyance  be  a 
mortgage  or  a  conditional  sale  must  be  determined  by  a  consider- 
ation of  the  peculiar  circumstances  of  each  case.^  "  A  glance  at 
the  numerous  adjudications  in  controversies  of  this  kind  will  suf- 
fice to  show  that  each  case  must  be  decided  in  view  of  the  pe- 
culiar circumstances  which  belong  to  it  and  mark  its  character, 
and  that  the  only  safe  criterion  is  the  intention  of  the  parties,  to 
be  ascertained  by  considering  their  situation  and  the  surrounding 

1  Flagg  V.  Mann,  2  Sumn.  486  ;  Dough-  3  gee  §  325  ;  Hughes  v.  Sheaff,  19  Iowa, 
erty  v.  McColgan,  6  Gill  &  J.  (Md.)  275  ;  335  ;  Edrington  v.  Harper,  3  J.  J.  Marsh. 
Pearson  w.  Seay,  38  Ala.  643.  (Ky.)   354;  Davis  v.  Stonestreet,  4  Ind. 

2  In  Flagg  V.  Mann,  supra.  101  ;   Heath   v.   Williams,  30  Ind.  495. 

186 


WHEN   THEY    CONSTITUTE   A    CONDITIONAL   SALE.  [§  259. 

facts,  as  well  as  the  written  memorials  of  the  transaction."  ^  The 
intention  of  the  parties  is  the  only  true  and  infallible  test,  and 
this  intention  is  to  be  gathered  from  the  circumstances  attending 
the  transaction  and  the  conduct  of  the  parties,  as  well  as  from  the 
face  of  the  written  contract. 

While  in  all  doubtful  cases  the  law  will  construe  the  contract 
to  be  a  mortgage  rather  than  a  conditional  sale,^  yet,  when  a  con- 
ditional sale  is  clearly  established,  it  will  be  enforced.^  If  the 
relation  of  debtor  and  creditor  in  any  given  case  existed  in  the 
beginning,  and  the  debt  still  subsists  as  to  the  consideration  of 
the  conveyance,  the  transaction  will  be  treated  as  a  mortgage. 
If,  however,  the  debt  was  extinguished  by  a  fair  agreement,  and 
the  grantor  has  the  privilege  merely  of  refunding  if  he  pleases, 
by  a  given  time,  and  thereby  entitle  himself  to  a  reconveyance, 
the  transaction  is  a  conditional  sale,  and  the  equity  of  redemption 
does  not  continue.*  The  grantor  who  neglects  to  perform  the 
condition  on  which  the  privilege  of  repurchasing  depends  will  not 
be  relieved.^ 

259,  Conway  v.  Alexander.  —  This  matter  was  carefully  con- 
sidered by  the  Supreme  Court  of  the  United  States  in  Conway  v. 
Alexander.^  Land  had  been  conveyed  to  a  third  person  in  trust, 
to  reconvey  to  the  grantor  if  he  should  repay  the  purchase  money 
befoi-e  a  day  named,  and  if  not,  then  to  convey  to  the  purchaser. 
The  grantor  brought  a  bill  to  redeem,  whereupon  the  court  held 
that  in  the  absence  of  a  bond,  note,  or  other  evidence  of  indebt- 
edness, the  transaction  must  be  regarded  as  a  conditional  sale  ; 
and  as  the  complainant  had  not  tendered  the  money  at  the  time 
provided,  that  the  bill  should  be  dismissed.  Chief  Justice  Mar- 
shall, delivei-ing  the   opinion   of  the  court,  said:  "To   deny  the 

1  Cornell  v.  Hall,  22  Mich.  377,  383,  per  Bloodgood  v.  Zeigly,   2  Caines   (N.  Y.) 

Graves,  J.  Cas.  124. 

-  §  279;     King  v.  Newman,    2  Munf.  *  Robinsonr.  Cropsey,  2  Edw.  (N.  Y.) 

(Va.)40;  Robertson  r.  Campbell,  2  Call  Ch.  138  ;  S.    C.   6    Paige   (N.    Y.),   480; 

(Va.),  3.54  ;  Sears  v.  Dixon,  33   Cal.  326 ;  Holmes   v.  Grant,  8    lb.   243  ;  Brown   v. 

Skinner  v.  Miller,  5  Litt.  (Ky.)  86  ;  Poin-  Dewey,  2  Barb.  (N.  Y.)  28 ;  S.  C.  1  Sandf. 

dexter  f.  McCannon,  1  Dev.  (N.   C.)  Eq.  (N.  Y.)  Ch.  56. 

373;    Conway   v.   Alexander,    7   Cranch,  &  Hughes  u.  Sheaff,  19  Iowa,  335 ;  Sax- 

218.  ton  V.  Hitchcock,  47  Barb.   (N.  Y.)   220; 

3  Davis    V.  Thomas,    1  R.   &  M.  506  ;  Woodworth  v.  Morris,  56  lb.   97  ;  Whit- 
Goodman   V.   Grierson,   2   Ball    &  Beatt.  ney  y.  Townsend,  2  Lans.  (N.  Y.)  249. 
278  ;  Pennington  v.  Hanby,  4  Munf.  140  ;  ^  7  Cranch,  218. 

187 


§  259.]        ABSOLUTE   DEED   AND   AGREEMENT   TO   RECONVEY. 

power  of  two  individuals,  capable  of  acting  for  themselves,  to 
make  a  contract  for  the  purchase  and  sale  of  lands  defeasible  by 
the  payment  of  money  at  a  future  day  ;  or,  in  other  words,  to 
make  a  sale  with  a  reservation  to  the  vendor  of  a  right  to  repur- 
chase the  same  land  at  a  fixed  price  and  at  a  specified  time,  would 
be  to  transfer  to  the  courts  of  chancerjs  in  a  considerable  degree, 
the  guardianship  of  adults  as  well  as  infants.  Such  contracts  are 
certainly  not  prohibited  either  by  the  letter  or  the  policy  of  the 
law.  But  the  policy  of  the  law  does  prohibit  the  conversion  of  a 
real  mortgage  into  a  sale  ;  and  as  lenders  of  money  are  less  under 
the  pressure  of  circumstances  which  control  the  perfect  and  free 
exercise  of  the  judgment  than  borrowers,  the  effort  is  frequently 
made  by  persons  of  this  description  to  avail  themselves  of  the  ad- 
vantage of  this  superiority,  in  order  to  obtain  inequitable  advan- 
tages. For  this  reason  the  leaning  of  courts  has  been  against 
them,  and  doubtful  cases  have  generally''  been  decided  to  be 
mortgages.  But  as  a  conditional  sale,  if  really  intended,  is 
valid,  the  inquiry  in  every  case  must  be,  whether  the  contract 
in  the  specific  case  is  a  security  for  the  repayment  of  money 
or  an  actual  sale. 

"  In  this  case  the  form  of  the  deed  is  not,  in  itself,  conclusive 
either  wa}^  The  want  of  a  covenant  to  repay  the  money  is  not 
complete  evidence  that  a  conditional  sale  was  intended,  but  is  a 
circumstance  of  no  inconsiderable  importance.  If  the  vendee 
must  be  restrained  to  his  principal  and  interest,  that  principal  and 
interest  ought  to  be  secure.  It  is,  therefore,  a  necessary  ingre- 
dient in  a  mortgage,  that  the  mortgagee  should  have  a  remedy 
against  the  person  of  the  debtor.  If  this  remedy  really  exists, 
its  not  being  reserved  in  terms  will  not  affect  the  case.  But  it 
must  exist  in  order  to  justify  a  construction  which  overrules  the 
express  words  of  the  instrument.  Its  existence,  in  this  case,  is 
certainly  not  to  be  collected  from  the  deed.  There  is  no  acknowl- 
edgment of  a  preexisting  debt,  nor  any  covenant  for  repayment. 
An  action  at  law  for  the  recovery  of  the  money,  certainly  could 
not  have  been  sustained  ;  and  if,  to  a  bill  in  chancei'y  praying  a 
sale  of  the  premises,  and  a  decree  for  so  much  money  as  might  re- 
main due,  Robei't  Alexander  had  answered  that  this  was  a  sale 
and  not  a  mortgage,  clear  proof  to  the  contrary  must  have  been 
produced  to  justify  a  decree  against  him." 
188 


WHEN    THEY    CONSTITUTE   A    CONDITIONAL   SALE.       [§§  260,  261. 

260.  In  order  to  convert  what  appears  to  be  a  conditional 
sale  into  a  mortgage,  the  evidence  should  be  so  clear  as 
to  leave  no  doubt  that  the  real  intention  of  the  parties  was 
to  execute  a  mortgage.  It  may  well  be  that  a  person  buys  lauds 
in  satisfaction  of  a  precedent  debt,  or  for  a  consideration  then 
paid,  and  at  the  same  time  contracts  to  reconvey  the  lands  upon 
the  payment  of  a  certain  sum,  and  there  is  no  intention  on  the 
part  of  either  party  that  the  transaction  should  be,  in  effect,  a 
mortgage.  The  covenant  to  reconvey  is  not  necessarily  either  at 
law  or  in  equity  a  defeasance.  It  is  one  fact  which  may,  in  con- 
nection with  other  facts,  go  to  show  that  the  parties  really  in- 
tended the  deed  to  operate  as  a  mortgage  ;  but  standing  alone  it 
does  not  produce  that  result.  Something  more  is  necessary  ;  and 
an  indispensable  thing  is  a  debt  by  the  grantor  to  the  grantee  for 
which  the  conveyance  is  security.^  "  The  owner  of  the  lands  may 
be  willing  to  sell  at  the  price  agreed  upon,  and  the  purchaser  may 
also  be  willing  to  give  his  vendor  the  right  to  repurchase  upon 
specified  terms  ;  and  if  such  appears  to  be  the  intention  of  the 
parties,  it  is  not  the  duty  of  the  court  to  attribute  to  them  a  dif- 
ferent intention.  Such  a  contract  is  not  opposed  to  public  policy, 
nor  is  it  in  any  sense  illegal  ;  and  courts  would  depart  from  the 
line  of  their  duties  should  they,  in  disregard  of  the  real  intention 
of  the  parties,  declare  it  to  be  a  mortgage."  ^ 

261.  A  contract  of  repurchase  may  upon  its  face  show  that 
the  parties  really  intended  an  absolute  sale,  with  the  privilege 
to  the  vendor  of  repurchasing  on  the  terms  named.  It  will  be  so 
interpreted  when  the  provisions  of  the  contract  are  inconsistent 
with  the  idea  that  a  mortgage  to  secure  an  indebtedness  was  in- 
tended.^ The  agreement  upon  its  face  may  be  either  an  agreement 
to  reconvey  merely,  or  may  amount  with  the  deed  to  a  mortgage,* 
in  which  case  a  resort  to  evidence  outside  of  these  instruments  may 
be  necessary  to  determine  the  character  of  the  transaction.^     An 

^  Henley  v.  Hotaling,  41  Cal.  22.  month  for  the  use  of  the   money,  with  a 

2  Per  Chief  Justice  Rhodes  in  Henley  provision  that  if  the  net  rents  per  month 

V.  Hotaling,  supra.  should    exceed    that    sum,    the    grantee 

8  Hanford  i-.  Blessing,  80  111.  188.  should  apply  them  to  the  payment  of  the 

*  Hickox  V.  Lowe,  10  Cal.  197.     In  this  consideration. 

case  a  debtor  conveyed    to   his   creditor,  ^  Rich  u.  Doane,  35  Vt.  12.5;  Bishop  v. 

and  took  back  an  agreement  to  reconvey  Williams,  18  111.  101  ;  Snyder  v.  Griswold, 

whenever   the  grantor   should   repay  the  37  111.216;  Parish  r.  Gates,  29  Ala.  254 ; 

consideration,  with  a  stipulated  sum  per  McCarron  v.  Cassidy,  18  Ark.  34. 

189 


§  262.]         ABSOLUTE   DEED   AND   AGREEMENT   TO   RECONVEY. 

express  provision  that  the  contract  for  reconveyance  should  be  re- 
garded only  as  a  contract  to  reconvey,  and  not  as  an  acknowledg- 
ment that  the  deed  was  intended  as  a  mortgage,  should  be  given 
effect  to  if  consistent  with  the  whole  transaction,  as  declaring  the 
intention  of  the  parties  that  it  should  not  create  a  mortgage.^  If 
an  instrument  declares  that  it  is  a  conditional  deed  and  not  a 
mortgage,  and  is  to  be  absolute  upon  the  non-payment  of  a  sum 
mentioned  at  a  time  specified,  it  is  to  be  construed  as  a  condi- 
tional deed  and  not  a  mortgage.^  Sometimes  the  terms  of  the 
agreement  for  reconveyance  may  not  be  conclusive  that  a  sale  was 
intended  with  the  privilege  of  repurchasing,  but  may  be  so  incon- 
sistent with  any  other  theory  that  very  little  further  evidence  to 
the  same  effect  will  lead  to  this  determination.^  On  the  other 
hand,  an  absolute  deed  of  land  which  contains  a  recital  that  it 
was  executed  to  secure  the  payment  of  a  loan  of  money,  shows 
upon  its  face  that  it  is  a  mortgage."* 

262.  A  purchaser  is  entitled  to  have  his  sale  enforced.  — 
When  there  is,  in  fact,  a  sale  instead  of  a  mortgage,  but  the  grantor 
subsequently  claims  the  transaction  to  be  a  mortgage,  the  grantee 
may  maintain  a  bill  in  equity  to  have  it  decreed  a  sale.^  A  pur- 
chaser is  as  much  entitled  to  have  his  rights  protected  as  a  mort- 
gagor. A  sale  in  connection  with  an  agreement  for  repurchase 
comes  very  near  in  form  and  substance  to  a  mortgage,  but  the 
rights  of  the  parties  under  these  instruments  are  very  different.^ 
While  a  mortgage  may  be  redeemed  at  any  time  before  the  right 
is  cut  oft"  by  foreclosure,  there  can'  be  no  redemption  under  a  con- 
ditional sale  after  the  day  appointed.  But  this  is  the  contract  of 
the  parties,  and  either  one  of  them  is  entitled  to  have  it  enforced 
according  to  its  terms.' 

1  Ford  V.  Irwin,  18  Cal.  117.  P.  C.  184  ;  Perry  v.  Meddowcroft,  4  Beav. 

2  Burnside  u.  Terry,  45  Ga.  621.  197;    Holmes  v.  Grant,  8  Paige  (N.  Y.), 
8  Hanford  v.  Blessing,  80  111.  188.               243;  Brown  v.  Dewey,  2  Barb.  (N.  Y.) 

*  Montgomery   v.    Chadwick,    7    Iowa,     28,  172;  Glover  v.  Payn,    19  Wend.  (N. 
114.  Y.)  518  ;  Trucks  v.  Lindsey,  18  Iowa,  504  ; 

*  Rich  V.  Doane,  35  Vt.  125.  Moss  v.  Green,  10  Leigh  (Va.),  251  ;  Ran- 
'^  Conway  v.  Alexander,  7  Cranch,  218  ;     sone  v.  Frayser,  lb.  592  ;  Hanford  v.  Bless- 

Flagg  V.  Mann,  14  Pick.  (Mass.)  467.  ing,  80  111.  188  ;  Pitts  v.  Cable,  44  111.  103  ; 

^  Joy  V.  Birch,  4  CI.  &  F.  57  ;  Pegg  v.  Carr  v.  Rising,  62  111.  14;  Dwen  v.  Blake, 

Wisden,  16  Beav.  239  ;  Barrell  v.  Sabine,  44  111.  135  ;  Shays  v.  Norton,  48  111.  100  ; 

1  Vern.  268 ;  St.  John  v.  Wareham,  cited  3  Cornell  v.  Hall,  22  Mich.  377  ;  People  v. 

Swanst.  631 ;  Eusworth  i-.  Griffiths,  5  Bro.  Irwin,  14  Cal.  428  ;  18  lb.  117  ;  Henley  v. 
190 


WHEN   THEY   CONSTITUTE   A   CONDITIONAL   SALE.       [§§  263,  264. 

263.  The  character  of  the  transaction  is  fixed  at  the  incep- 
tion of  it,  and  is  what  tlie  intention  of  the  parties  makes  it.  The 
form  of  the  transaction,  and  the  circumstances  attending  it,  are 
the  means  of  finding  out  the  intention.  If  it  was  a  mortgage  in 
the  beginning  it  remains  so  ;  and  if  it  was  a  conditional  sale  at 
the  start  no  lapse  of  time  will  make  a  mortgage  of  it.  The  re- 
cording of  the  conveyance  as  a  mortgage,  if  it  was  intended  as  a 
sale  with  a  right  of  repurchase  at  the  option  of  the  grantor,  does 
not  make  it  a  mortgage.  If  not  a  security  in  the  beginning,  but 
an  absolute  sale  or  a  conditional  sale,  no  subsequent  event,  short 
of  a  new  agreement  between  the  parties,  can  convert  it  into  a 
mortgage.^ 

264.  If  intended  by  the  parties  as  a  security  for  money,  an 
absolute  conveyance  is  in  equity  a  mortgage.  Different  instru- 
ments e'xecuted  at  the  same  time,  constituting  one  transaction,  are 
to  be  read  together,  in  order  to  ascertain  the  intent  of  the  parties. 
Of  course  it  is  entirely  competent  for  persons  capable  of  acting 
for  themselves  to  make  a  sale  with  a  reservation  to  the  vendor  of 
a  right  to  repurchase  the  same  land  at  a  fixed  price,  and  at  a  spec- 
ified time  ;  and  the  inquiry  in  every  case  therefore  is,  whether 
the  contract  is  a  security  for  the  repayment  of  money,  or  an  actual 
or  conditional  sale.^  "  If  a  deed  or  conveyance  be  accompanied 
by  a  condition  or  matter  of  defeasance  expressed  in  the  deed,  or 
even  contained  in  a  separate  instrument,  or  exist  merely  in  parol, 
let  the  consideration  for  it  have  been  a  preexisting  debt  or  a  pres- 
ent advance  of  money  to  the  grantor,  the  only  inquiry  necessary 
to  be  made  is,  whether  the  relation  of  debtor  and  creditor  remains, 
and  a  debt  still  subsists  between  the  parties  ;  for  if  it  does,  then 
the  conveyance  must  be  regarded  as  a  security  for  the  payment, 
and  be  treated  in  all  respects  as  a  mortgage.  On  the  other  hand, 
where  the  debt  forming  the  consideration  for  the  conveyance  is 
extinguished  at  the  time  by  the  express  agreement  of  the  parties, 
or  the  money  advanced  is  not  paid  by  way  of  loan,  so  as  to  con- 

Hotaling,  41  Cal.  22  ;  Merritt  v.  Brown,  4  v.  Edwards,  11  Minn.  22  ;  Weide  v.  Gehl, 

C.  E.  Green  (N.  J.),  287  ;  Rich  v.  Doane,  21  Minn.  449;  Hicks  v.  Hicks,  5  G.  &  J, 

85  Vt.  125  ;    Haines  v.  Thomson,  70  I'a.  (Md.)  75  ;  Cole  v.  Bolard,  22  Pa.  St.  431 ; 

St.  434.  Whecland  v.  Swartz,  1  Yeates  (Pa.),  579  ; 

1  Kearney   v.  Macomb,  16   N.  J.   Eq.  Spence  v.   Steadman,  49  Ga.   133;   Lea- 

189.  high  V.  White,  8  Nev.  147. 


2  Holton  V.  Meighcn,  15  Minn.  69  ;  Hill 


191 


§  265.]         ABSOLUTE  DEED   AND   AGREEMENT   TO   RECONVEY. 

stitute  a  debt  and  liability  to  repay  it,  but,  by  the  terms  of  the 
agreement,  the  grantor  has  the  privilege  of  refunding  or  not  at 
his  election,  then  it  must  be  purchase  money,  and  the  transaction 
will  be  a  sale  upon  condition,  which  the  grantor  can  defeat  only 
by  a  repurchase,  or  performance  of  the  condition  on  his  part 
within  the  time  limited  for  the  purchase,  and  in  this  way  entitle 
himself  to  a  reconveyance  of  the  property."  ^ 

The  rights  of  the  parties  to  the  conveyance  must  be  reciprocal. 
If  the  transaction  be  in  the  nature  of  a  mortgage,  so  that  the 
grantor  may  insist  upon  a  reconveyance,  the  grantee  at  the  same 
time  may  insist  upon  repayment ;  but  if  it  be  a  conditional  sale, 
so  that  the  grantor  need  not  repurchase  except  at  his  option,  the 
grantee  cannot  insist  upon  repayment.^ 

An  absolute  deed  was  made  with  an  agreement  by  the  grantee 
executed  at  the  same  time,  whereby  it  was  stipulated  that  the 
grantor  might  at  his  election  repurchase  the  lands  for  a  certain 
sum  in  three  months,  and  for  certain  other  and  greater  sums  in  six 
and  twelve  months  respectively,  provided  he  would  so  elect  at  the 
expiration  of  six  months  from  the  date  of  the  agreement,  which 
sums  were  largely  in  excess  of  the  consideration  expressed  in  the 
deed,  and  six  per  cent,  interest  thereon.  The  election  to  repur- 
chase not  having  been  made  within  the  time  stipulated,  the  pur- 
chaser refused  to  allow  a  repurchase,  and  claimed  that  the  sale 
and  deed  were  absolute  ;  the  evidence  showing  that  the  transaction 
was  really  a  loan,  it  was  held  that  the  grantor  might  redeem  upon 
the  payment  of  the  consideration  expressed  in  the  deed,  with  in- 
terest.^ 

265.  The  existence  of  a  debt  is  the  test,  —  If  an  absolute 
conveyance  be  made  and  accepted  in  payment  of  an  existing  debt, 
and  not  merely  as  security  for  it,  an  agreement  by  the  grantee  to 
reconvey  the  land  to  the  grantor  upon  receiving  a  certain  sum 
within  a  specified  time  does  not  create  a  mortgage  but  a  condi- 
tional sale,  and  the  grantee  holds  the  premises  subject  only  to  the 
right  of  the  grantor  to  demand  a  reconveyance  according  to  the 

1  Robinson  v.  Cropsey,  2  Edw.  (N.  Y.)  Grierson,  2  Ball  &  B.  274;  Alderson  v. 
Ch.  143.  White,  2  De  G.  &  J.  97  ;  Tapply  v.  Sheath- 

2  Williams  v.  Owen,  10  Sim.  386  ;  Da-     er,  8  Jur.  N.  S.  1163. 

vis  V.  Thomas,  1   R.  &  M.  506  ;   Shaw  v.         «  Klinck  v.  Price,  4  West  Va.  4. 
JcflFery,  13  Moore  P.  C.  432  ;  Goodman  v. 
192 


WHEN   THEY    CONSTITUTE   A   CONDITIONAL   SALE.         [§  265. 

terms  of  the  agreement.^  A  debt  either  preexisting  or  created  at 
the  time  is  an  essential  requisite  of  a  mortgage.  "  Where  there 
is  no  debt  and  no  loan,  it  is  impossible  to  say  that  an  agreement 
to  resell  will  change  an  absolute  deed  into  a  mortgage."  ^  The 
debt  may  not  be  evidenced  by  any  bond  or  note,  or  covenant  to 
pay  it ;  so  that  the  facts  and  circumstances  of  the  transaction 
must  be  inquired  into  in  order  to  ascertain  whether  the  consider- 
ation of  the  deed  was  really  a  debt  or  loan  ;  if  not  one  or  the 
other,  the  deed  can  hardly  be  a  mortgage.^ 

An  agreement  by  the  grantee  in  an  absolute  conveyance,  that 
if  the  grantor  should,  within  a  certain  time,  bring  him  the  amount 
of  the  consideration  of  the  deed  with  interest,  he  would  deliver  up 
the  deed,  but  otherwise  the  grantor  should  forfeit  all  claim  to  such 
deed,  was  held  not  to  be  a  defeasance  of  a  mortgage,  as  there  was 
no  debt  secured,  but  merely  a  contract  to  reconvey  on  certain 
terms.*  But  whenever  a  debt  is  recognized  by  the  parties  or 
established  by  evidence,  such  an  agreement  serves  to  make  a  mort- 
gage of  the  conveyance ;  as  where  a  grantee  a  year  after  the  mak- 
ing of  the  deed  to  him  gave  a  bond  reciting  that  there  had  been 
a  loan,  and  that  the  conveyance  was  made  to  secure  it,  the  trans- 
action was  a  mortgage,  although  the  bond  contained  a  condition 
that  if  the  money  was  not  paid  on  a  day  named  the  obligation 
should  be  void.^  And  so  where  a  grantee  executed  a  bond  to  the 
grantor  reciting  the  deed  to  him  and  the  grantor's  indebtedness, 
and  providing  that  if  the  debt  should  be  paid  on  or  before  a  cer- 
tain day  the  bond  should  be  void,  but  that  the  bond  should  re- 
main in  force  if  the  grantee  after  payment  should  neglect  or  refuse 
to  reconvey  the  land,  the  transaction  was  held  to  be  a  mortgage.^ 

1  See  §  325  ;  Morrison  v.  Brand,  5  Daly  stances  rendering  the  transaction  a  mort- 

(N.  Y.),  40;   Glover  v.  Payn,  19  Wend.  gage. 

(N.  Y.)  518 ;  O'Neill  v.  Capelle,  62  Mo.  2  Per  Bronson,  J.,  in  Glover  v.  Payn, 

202  ;  Hall  v.  Savill,  3  Greene  (Iowa),  37 ;  19  Wend.  (N.  Y.),  518. 

Ruffier  y.Womack,  30  Tex. 332  ;  Honore  v.  ^  Conway  v.  Alexander,  7^Cranch,  218  ; 

Hutchings,  8  Bush  (Ky.),  687  ;  Slowey  v.  Flagg   v.   Mann,   14   Pick.    (Mass.)  467  ; 

McMurray,  27   Mo.   113;   Magnusson  v  Lund   v.  Lund,  1    N.  H.  39;    Henley  v. 

Johnson,  73  111.  156;  Pitts,  v.  Cable,  44  Hotaling,  41   Cal.  22  ;  Gait  v.  Jackson,  9 

111.    103;    French   v.    Sturdivant,  8   Me.  Ga.  151. 

246;    West    v.    Hendrix,   28    Ala.   226;  *  Reading  r.  Weston,  7  Conn.  143 ;  and 

Hillhouse    v.    Dunning,    7    Conn.    143;  see  Pearson  y.  Seay,  35  Ala.  612. 

Spence  v.   Steadinan,  49  Ga.  133;  Mur-  ^  Montgomery  y.  Chadwick,  7  Iowa,  114. 

phy   V.    Purifoy,   52    Ga.    480 ;    and    sec  ''  Van  Wagner  v.  Van  Wagner,  7  N.  J. 

Wells  V.  Morrow,  38  Ala.  125,  for  circum-  Eq.  (3  Halst.)  27. 


VOL.  I.  13  19 


O 


§  266.]        ABSOLUTE   DEED   AND   AGREEMENT   TO   RECONVEY. 

In  a  case  before  the  Supreme  Court  of  California,^  the  agree- 
ment was,  that  the  grantee  should  execute  a  bond  to  reconvey  the 
premises  ;  but  the  grantor  did  not  agree  to  repurchase,  and  the 
bond  was  delivered  as  an  escrow,  and  it  remained  an  escrow  until 
after  the  time  therein  mentioned  for  the  execution  of  the  deed, 
and  was  then  cancelled.  "  If  the  deed  was  intended  as  a  mort- 
gage, the  mortgagee  would  have  a  right  of  action  to  foreclose  the 
mortgage  ;  but  if  he  had  brought  such  an  action,  the  answer  that 
there  was  no  promise,  either  express  or  implied,  on  the  part  of 
the  alleged  mortgagor  to  repay  the  purchase  money,  would  have 
been  a  complete  bar.  This  case  differs  from  Sears  v.  Dixon^  in 
the  important  particular,  that  in  that  case  the  mortgagor  cove- 
nanted to  repay  the  purchase  money  at  a  fixed  time,  and  under 
the  name  of  rent,  to  pay  interest  thereon  at  a  stipulated  rate ; 
and  the  court  also  found  that  the  parties  intended  to  execute  a 
mortgage ;  but  in  this  case  the  court  found  that  the  parties  in- 
tended the  deed  to  be  in  fact,  as  it  was  in  form,  an  absolute  con- 
veyance." 

266.  When  an  absolute  conveyance  has  been  made  upon 
an  application  for  a  loan,  and  an  agreement  is  made  to  recon- 
vey upon  payment  of  the  money  advanced,  as  a  general  rule  the 
transaction  is  adjudged  to  constitute  a  mortgage.^  In  such  case 
the  purpose  of  the  grantor  was  in  the  beginning  to  borrow  money ; 
and  unless  a  change  be  shown  in  his  intentions  it  is  presumed  that 
any  use  he  may  have  made  of  his  real  estate,  in  connection  with 
it,  was  merely  as  a  pledge  to  secure  a  loan.^ 

The  parties  having  originally  met  upon  the  footing  of  borrow- 
ing and  lending,  although  a  different  consideration  be  recited  in 
the  deed,  it  will  be  considered  a  mortgage  until  it  be  shown  that 
the  parties  afterwards  bargained  for  the  property  independently 
of  the  loan.^     But  an  application  for  a  loan  may  in  any  case  re- 

1  Henley  v.  Hotaling,  41   Cal.  22,  28  ;    33  Pa.  St.  158;  Holmes  v.  Grant,  8  Paige 
and  see  §247.  (N.  Y.),  243. 

2  33  Cal.  326.  ^  Anon.  2  Hayw.  (N.  C.)  26  ;  Crews  v. 
8  Russell   V.  Southard,   12  How.    139;     Threadgill,  35  Ala.  334 ;  Davis  r.  Hemen- 

Miller  v.  Thomas,  14  111.  428  ;  Parmelee  v.  way,  27  Vt.  589. 

Lawrence,  44  111.  405  ;  Wheeler  r.  Ruston,  ^  ]\jorris   v.  Nixon,   1    How.   118;  and 

19lnd.  334;  Cross  v.  Hcpner,  7  Ind.  359;  see,   also,   Dwen  v.   Blake,   44   111.    135; 

Crasson  D.  Swovcland,  22  111.427;  Brown  Smith    v.  Doyle,  46   111.  451  ;  Phillips  v. 

V.  Nickle,  6  Pa.  St.  390 ;  Kcllum  v.  Smith,  Hulsizer,  5  C.  E.  Green  (N.  J.),308  ;  Crews 
194 


WHEN  THEY  CONSTITUTE  A  CONDITIONAL  SALE.    [§  267. 

suit  in  a  sale  of  land  absolutely  or  conditionally,  and  because  the 
transaction  began  with  such  an  application  it  is  not  to  be  con- 
cluded that  it  necessarily  ended  in  a  loan.  The  language  of  the 
court,  in  some  cases,  would  seem  to  imply  that  a  court  of  equity 
would  always  allow  redemption  in  such  case  ;  but  although  such 
transactions  should  be  carefully  scrutinized,  when  it  appears  that 
the  negotiations  resulted  in  a  sale  absolute  or  conditional  this  will 
be  supported.  1 

The  terms  of  a  contract,  to  the  effect  that  the  grantee  would  re- 
convey  upon  the  payment  of  a  certain  sum  and  interest,  less  the 
rents  he  might  receive,  tend  to  show  that  the  debt,  whether  pre- 
existing or  created  at  the  time,  was  not  extinguished,  although  it 
be  declared  in  the  contract  that  it  is  merely  an  agreement  to  re- 
convey,  and  not  an  acknowledgment  of  a  mortgage.^ 

267.  An  absolute  deed  delivered  in  payment  of  a  debt  is  not 
converted  into  a  mortgage  merely  because  the  grantee  therein 
gives  a  contemporaneous  stipulation,  binding  him  to  reconvey  on 
being  reimbursed,  within  an  agreed  period,  an  amount  equal  to 
the  debt  and  the  interest  thereon.  If  the  conveyance  extinguishes 
the  debt,  and  the  parties  so  intend,  so  that  a  plea  of  payment 
would  bar  an  action  thereon,  the  transaction  would  be  an  abso- 
lute sale  notwithstanding.^  And  so  if  there  was,  in  fact,  a  sale, 
an  agreement  by  the  purchaser  to  resell  the  property  within  a 
limited  time,  at  the  same  price,  does  not  convert  it  into  a  mort- 
gage."* A  farmer  agreed  with  another  that  he  might  sell  his  farm 
and  have  all  he  could  obtain  above  -12,000  ;  and  to  give  effect  to 
this  agreement  the  farmer  conveyed  to  him  the  land,  and  took 
back  a  reconveyance,  on  condition  that  the  reconveyance  should 
be  void  upon  payment  of  82,000.  The  transaction  was  of  course 
held  to  be  a  conditional  sale.^ 

V.  Threadgill,   35   Ala.  334;    Sweetzcr's  Kerr,  44  Mo.  429 ;  McDonald  r.  McLeod, 

Appeal,  71  Pa.  St.  264 ;  Tibbs  v.  Morris,  1  Ired.  (N.  C.)  Eq.  221. 

44  Barb.   (N.  Y.)   139  ;  Marvin   v.  Pren-  -  People  v.  Irwin,  14  Cal.  428. 

tice,  49  How.  (N.  Y.)  Pr.  385;  Fiedler  v.  3  gee  §  326;  Turner  v.  Kerr,  44  Mo. 

Darrin,    50   N.    Y,   441;    59    Barb.   651;  429;  Farmer  i-.  Grose,  42  Cal.  169;  Page «;. 

Leahigh  y.  White,  8  Nev.  147;  Knowlton  Vilhac,  42Cal.  75  ;  Baugher  r.  Merryman, 

V.  Walker,  13  Wis.  264;   Richardson  v.  32   Md.  185;  Weathersly  v.   Weathersly, 

Barrick,  16  Iowa,  407.  40  Miss.  462 ;  Hoopes  v.  Bailey,  28  Miss. 

1  Flagg  V.  Mann,  14  Pick.  (Mass.)  467  ;  328  ;  ISIorrison  v.  Brand,  5  Daly  (N.  Y.),  40. 

Holmes  v.  Fresh,  9   Mo.   206  ;  Turner  v.  ^  Mason  v.  Moody,  26  Miss.  184. 

5  Porter  v.  Nelson,  4  N.  H.  130. 

195 


§  268.]        ABSOLUTE   DEED   AND   AGREEMENT   TO   RECONVEY. 

But  if  the  indebtedness  be  not  cancelled,  equity  will  regard  the 
conveyance  as  a  mortgage,  whether  the  grantee  so  regards  it  or 
not.  He  cannot  at  the  same  time  hold  the  land  absolutely,  and 
retain  the  right  to  enforce  payment  of  the  debt  on  account  of 
which  the  conveyance  was  made.  The  test,  therefore,  in  cases  of 
this  sort,  by  which  to  determine  whether  the  conveyance  is  a  sale 
or  a  mortgage,  is  to  be  found  in  the  question  whether  the  debt 
was  discharged  or  not  by  the  conveyance.^  If  in  the  subsequent 
transactions  of  the  parties  there  is  no  recognition  in  any  way  of 
the  relation  of  debtor  and  creditor,  and  the  vendee  for  a  consider- 
able period  holds  possession  without  paying  interest  or  rent,  these 
facts  go  to  show  that  there  is  only  an  agreement  for  repurchase 
and  not  a  mortgage.^ 

268.  When  purchase  is  made  by  one  for  the  benefit  of  an- 
other. —  Where  a  person  wishing  to  purchase  certain  property, 
and  not  being  able  to  do  it  otherwise,  induced  a  third  person  to 
become  the  purchaser,  and  he  agreed  to  convey  it  to  the  other  if 
certain  payments  are  made  to  him  within  a  specified  time,  in  de- 
fault of  payment  there  was  no  right  of  redemption  afterwards.^ 
If  the  relation  of  debtor  and  creditor  is  not  created  between  the 
parties,  the  transaction  is  not  a  mortgage  but  a  conditional  sale.* 
This  is  the  test  to  be  applied  in  every  case.  It  is  a  question  of 
fact,  for  the  determination  of  which  equity  allows  a  wide  range  of 
inquiry  into  the  relations  of  the  parties  and- the  circumstances  of 
the  case  ;  and  from  the  facts  the  law  deduces  the  inference,  either 
that  there  was  a  sale  absolutely  or  upon  condition,  or  else  that 
the  transaction  was  a  mortgage.^ 

1  Sutplien  V.  Cushmaii,  35  111.  18G.  Roberts  v.  McMahan,  4  Greene  (Iowa),  34  ; 

2  O'Reilly  v.  O'Donoghue,  Ir.  Rep.  10     Hull  v.  McCall,  13  Iowa,  467. 

Eq.  73.  The  Master  of  Rolls  acted  upon  *  Gait  v.  Jackson,  9  Ga.  151  ;  Chap- 
this  principle  in  a  transaction  held  to  be  a  man  v.  Ogden,  30  111.  515  ;  Humphreys  v. 
sale  where  the  agreement  for  repurchase  Snyder,  1  Morris  (Iowa),  263. 
was  founded  upon  the  following  letter:  ^  Rice  v.  Rice,  4  Pick.  (Mass)  349; 
"  At  any  time  within  the  next  ten  years  Henry  v.  Davis,  7  Johns.  (N.  Y.)  Ch.  40; 
you  come  forward  and  pay  me  £160,  pro-  Sweetzer's  Appeal,  71  (Pa.)  264;  Todd 
vided  you  want  it  for  yourself  or  any  of  v.  Campbell,  32  Pa.  St.  250 ;  Heister  v. 
your  children I  will  hand  you  jjos-  Maderia,  3  W.  &  S.  (Pa.  St.)  384  ;  Robin- 
session  of  the  same  with  pleasure,  and  be-  son  v.  Willoughby,  65  N.  C.  520 ;  Gould- 
come  your  yearly  tenant."  ing  v.  Bunster,  9  Wis.  513  ;  Turner  v. 
'■'■  See  §  331 ;  Hill  v.  Grant,  46  N.  Y.  Kerr,  44  Mo.  429  ;  McNees  v.  Swaney,  50 
96  ;  Stephenson  v.  Thompson,  13  111,  186  ;  Mo.  388. 
196 


WHEN  THEY  CONSTITUTE  A  CONDITIONAL  SALE.   [§§  269,  270. 

When  a  person  advances  money,  and  at  the  same  time  receives 
a  deed  and  gives  back  to  the  grantor  a  bond  to  reconvey,  these 
facts  incline  to  the  belief  that  the  transaction  is  a  loan  and  a  se- 
curity. But  the  case  is  different  when  the  obligation  to  conve}^  is 
given  to  a  person  other  than  the  grantor. ^ 

269.  A  continuing  debt  shows  the  transaction  to  be  a 
mortgage.  —  In  determining  wliether  a  transaction  is  a  contract 
for  repurchase  or  a  mortgage,  the  fact  that  there  is  no  continuing 
debt  is  a  strong  circumstance,  where  there  is  any  doubt,  to  show 
that  it  is  a  contract  for  repurchase.  If  the  proof  establishes  that 
the  consideration  money  was  a  loan,  and  the  party  receiving  it  is 
personally  liable  for  its  repayment,  that  constitutes  it  a  debt ;  it 
does  not  require  a  writing  to  make  it  such,  nor  is  it  extinguished 
by  or  merged  in  a  mortgage  taken  for  security.^  Unless  the  rela- 
tion of  debtor  and  creditor  existed  between  the  parties  in  the 
beginning  in  reference  to  the  consideration  of  the  conveyance,  and 
the  relation  continues  so  that  the  grantee  would  have  the  right  to 
call  upon  the  grantor  to  supply  any  deficiency  that  might  arise  in 
case  of  a  foreclosure  and  sale  of  the  premises,  the  agreement  to  re- 
convey  in  connection  with  the  deed  constitutes  a  conditional  sale.^ 

There  can  be  no  mortgage  without  a  debt.  There  may  be 
agreements  for  the  performance  of  obligations  other  than  the  pay- 
ment of  money  ;  but  leaving  these  out  of  view,  it  is  essential  that 
there  be  an  agreement,  either  express  or  implied,  on  the  part  of 
the  mortgagor,  or  some  one  in  whose  behalf  he  executes  the  mort- 
gage, to  pay  to  the  mortgagee  a  sum  of  money  either  on  account 
of  a  preexisting  debt  or  a  present  loan.* 

270.  An  agreement  that  the  grantee  may  buy  the  property 
absolutely,  after  a  specified  time,  is  regarded  as  a  circumstance 

1  Carr  v.  Risinjr,  62  111.  14.  See  Smith  Ch.  138;  Saxton  v.  Hitchcock,  47  Barb. 
V.  Sackett,  15  111.  528;  Davis  v.  Hopkins,  (X.  Y.)  220  ,  Slowey  v.  McMurray,  27  Mo. 
lb.  519,  for  cases  where  a  third  party  fur-  11.3;  Hoopes  v.  Bailey,  28  Miss.  328; 
nished  the  money  but  was  not  a  party  to  Johnson  v.  Clark,  5  Ark.  321 ;  Blakemore 
the  transaction.  v.  Byrnside,  7  Ark.  509. 

2  Phillips  V.  Hulsizer,  20  N.  J.  Eq.  .308  ;  *  Henley  v.  Hotaling,  41  Cal.  22,  28, 
Porter  v.  Clements,  3  Ark.  364 ;  Farmer  per  Rhodes,  C.  J. ;  and  see  Usher  v.  Liv- 
u.  Grose,  42  Cal.  169.  ermore,  2  Iowa,  117.     Also,  see  §  272. 

8  Robinson  v.  Cropsey,  2  Edw.  (N.  Y.) 

197 


§  271.]        ABSOLUTE   DEED   AND   AGREEMENT   TO   RECONVEY. 

tending  to  show  that  the  transaction  is  a  conditional  sale.  Thus 
where  the  grantee's  covenant,  executed  at  the  same  time  with  an 
absolute  conveyance  to  him,  recited  that  this  was  made  for  the 
purpose  of  paying  a  certain  sum  of  mone}^  and  stipulated  that  he 
would  not  convey  the  premises  within  one  year  without  the  con- 
sent of  the  grantor,  and,  if  the  grantor  within  that  time  should 
find  a  purchaser,  the  grantee  would  convey  the  land  on  receiving 
the  amount  with  interest  for  which  the  land  had  been  conveyed  to 
him ;  and  that  in  case  such  sale  should  not  be  made  within  the 
year,  it  should  then  be  submitted  to  certain  persons  named,  to 
determine  what  additional  sum  the  grantee  should  pay  for  the 
land,  which  sum  he  covenanted  to  pay,  the  transaction  was  held 
not  to  be  a  mortgage,  but  a  conditional  sale  giving  the  grantee  the 
right  to  recover  possession  of  the  land,  after  the  expiration  of  the 
year,  in  ejectment  against  the  grantor.^ 

271.  On  the  other  hand,  an  agreement  that  the  grantee  may 
sell  all  the  property  for  the  best  possible  price,  and  retain  from 
the  proceeds  the  amount  due  him,  paying  the  residue  to  the  grantor, 
shows  that  the  transaction  is  a  mortgage  ^  until  the  power  of  sale 
is  executed.^  In  case  the  land  should  sell  for  a  less  sum  than  the 
debt,  the  grantee  is  entitled  to  recover  the  deficiency.*  And  so  a 
conveyance  to  a  trustee  with  power  to  sell  the  land,  pay  the  cred- 
itor from  the  proceeds,  and  deliver  the  balance  to  the  grantor  on 
his  failure  to  pay  the  debt,  is  a  mortgage,  and  subject  to  the  pro- 
visions of  a  registry  law  relating  to  mortgages.^  But  a  stipula- 
tion that  if  the  grantor  can,  within  a  limited  time,  "  dispose  of  the 
land  conveyed  to  better  advantage,"  he  may  do  so,  paying  to  the 
grantee  the  "  consideration  money  "  mentioned  in  the  deed,  does 
not  make  the  instrument  a  mortgage.^  And  so  a  covenant  by  the 
grantor,  who  is  a  joint  tenant,  not  to  make  partition  without  the 

1  Baker  v.  Thrasher,  4   Den.    (N.  Y.)  ^      3  Eaton   v.   Whiting,  3    Pick.   (Mass.) 
493.  484. 

2  Ogden  V.  Grant,  6  Dana  (Ky.),  473;        *  Pahner  v.  Gurnsey,   7  Wend.  (N.  Y.) 
Crane  v.  Buchanan,  29  Ind.  570  ;  Ruffners     248. 

V.  Putney,  12  Gratt.  (Va.)  541  ;  Hagthorp  5  Woodruff  v.  Robb,  19  Ohio,  212,  and 

V.  Hook,  1   G.  &  J.  (Md.)  270;   Gillis  v.  see  Irwin  v.   Longworth,  20  Ohio,    581; 

Martin,  2  Dev.  (N.   C.)   Eq.  470;    Law-  Walsh  v.  Brennan,  52  111.  193.     See,  how- 

rence  v.  Farmers'  Loan  &  Trust  Co.  13  ever,  Alleghany  R.  &  Coal  Co.  v.  Casey, 

N.  Y.  200 ;  Kidd  v.  Teeple,  22  Cal.  255.  79  Pa.  St.  84. 

6  Stratton  v.  Sabin,  9  Ohio,  28. 
198 


WHEN   THEY    CONSTITUTE   A   CONDITIONAL   SALE.         [§  272. 

advice  and  consent  of  the  grantee,  does  not  turn  a  conditional  sale 
into  a  mortgage.^ 

272.  The  fact  that  there  is  no  agreement  for  the  payment 
of  the  debt  is  a  circumstance  entitled  to  considerable  weight,  as 
tending  to  show  that  the  conveyance  was  not  intended  as  a  mort- 
gage, and  that  the  relation  of  debtor  and  creditor  did  not  exist.^ 
"  The  want  of  a  covenant  to  repay  the  money,"  says  Chief  Justice 
Marshall,^  "  is  not  complete  evidence  that  a  conditional  sale  was 
intended,  but  is  a  circumstance  of  no  inconsiderable  importance." 
No  conveyance  can  be  a  mortgage  unless  made  for  the  purpose  of 
securing  the  payment  of  a  debt,  or  the  performance  of  a  duty 
either  existng  or  created  at  the  time,  or  else  to  be  created  or  to 
arise  in  the  future.  But  it  is  not  necessary  that  the  debt  or  duty 
should  be  evidenced  by  any  express  covenant,  or  by  any  separate 
written  security.*  Although  a  mortgage  cannot  be  a  mortgage 
on  one  side  only,  but  must  be  a  mortgage  with  both  parties,^  yet 
this  principle  is  applicable  to  the  lien  upon  the  land  only,  and  not 
to  the  personal  obligation. 

The  fact  that  there  is  no  collateral  undertaking  by  the  grantor 
for  the  payment  of  money,  or  the  performance  of  any  obligation,  is 
by  no  means  conclusive  of  the  nature  of  the  transaction.  This  is 
only  one  circumstance  to  be  regarded  in  ascertaining  whether  it  is 
to  be  treated  as  a  mortgage  or  a  sale  with  a  contract  for  repur- 
chase.^ It  affects  the  equitable  rights  and  claims  of  the  parties. 
If  there  be  no  contract  for  the  repayment  of  the  money,  the 
grantee  must  bear  any  loss  arising  from  depreciation  in  value ; 
and  it  would  seem  equitable,  on  the  other  hand,  that  he  should 
have  the  benefit  of  any  advance  in  the  value  of  the  property,  if 
the  repurchase  be  not  made  within  the  stipulated  period. 

A  debtor  conveyed  to   his  sureties  certain   land,  taking  from 

1  Cottrell  V.  Purchase,  For.  61  ;  Cas.  ^  Murphy  v.  Galley,  1  Allen  (Mass.), 
Temp.  Talb.  6L  107;    Flapg   v.  Mann,   14   Pick.    (Mass.) 

2  Horn  V.  Keteltas,  46  N.  Y.  605  ;  Flagg  467-479  ;  Rice  v.  Rice,  4  lb.  349  ;  Brant  v. 
V.  Mann,  14  Pick.  (Mass.)  467;  Bacon  v.  Robertson,  16  Mo.  129;  Bodwell  v.  Web- 
Brown,  19  Conn.  34  ;  Jarvis  v.  Woodruff,  ster,  13  Pick.  (Mass.),  411,  415;  Flint  v. 
22  Conn.  550.  Sheldon,    13    Mass.    443,   448  ;    Kelly    v. 

3  In  Conway  v.  Alexander,  7  Cranch,  Beers,  12  Mass.  387  ;  Brown  v.  Dewey,  1 
218.  Sandf.  (N.  Y.)   Ch.  56;  2   Barb.  (N.  Y.) 

*  Brant  v.  Robertson,  16  Mo.  129.  28. 

6  Copleston  v.  Boxwill,   1    Ch.   Ca.   1 ; 
White  V.  Ewer,  2  Vent.  340. 

199 


§  273.]        ABSOLUTE    DEED   AND   AGREEMENT    TO   RECONVEY. 

them  a  bond  providing  that  the  obligors  should  pay  his  debt,  and 
stating  that  "  the  intent  of  the  deed  was  to  indemnify  and  save 
them  harmless."  The  bond  also  referred  to  the  deed  as  "  indem- 
nity and  security  in  addition  to  security  "  of  other  lands  mortgaged 
to  the  obligors,  and  stipulated  that  the  land  should  not  be  sold 
for  three  years,  so  that  the  debtor  "  may  redeem  if  he  chooses  to 
do  so."  If  the  obligors  were  not  "  reimbursed  "  within  the  three 
years,  they  were  to  hold  the  lands  free  from  all  claim  on  the 
debtor's  part,  but  they  agreed  to  place  no  obstacles  in  the  way  of 
his  "  paying  said  debts  and  redeeming  the  said  lands."  The 
transaction  was  adjudged  to  be  a  mortgage,  and  not  a  conditional 
sale,  although  there  was  no  covenant  on  the  part  of  the  grantor  to 
pay  the  debt.^ 

273.  The  fact  that  interest  is  payable,  by  the  terms  of  the 
contract,  upon  the  money  advanced  by  the  person  who  takes  the 
title  to  the  property,  is  a  circumstance  tending  to  show  that  the 
transaction  was  a  loan  upon  security  instead  of  a  conditional  sale. 
Anything  tending  to  show  that  there  was  a  subsisting  debt,  or  an 
advance  by  way  of  loan,  goes  to  prove  the  transaction  to  be  a 
mortgage.^ 

What  is  in  fact  a  payment  of  interest  is  sometimes  disguised 
under  the  payment  of  rent  by  the  grantor  in  possession  to  the 
grantee  ;  but  although  the  transaction  has  the  appearance  of  a 
conditional  sale,  the  payment  of  rent  in  lieu  of  interest  may  be 
a  circumstance  tending  to  show  that  it  is  in  fact  a  mortgage.^     If 

^  Wing  V.  Cooper,  37  Vt.  169.  ment   is    to    continue    eighteen    months, 

2  Murphy  v.    Galley,  1    Allen  (Mass.),  when,  if  the  property  has  not  been  sold, 

107  ;  Farmer  v.  Grose,  42  Gal.  169  j  Har-  said  Honore  is  to  pay  one  half  the  sum  so 

bison  V.  Houghton,  41  111.  522 ;  Honore  v.  advanced,  with   the   accrued   interest,  or 

Hutchings,  8  Bush  (Ky.),  687.  said  Hutchings  is  to  be  the  sole  owner  of 

"HutchingsandHonore,  in  1861,  jointly  the   same.'     The  land  was  not  sold  with- 

purchased  thirty  acres  of  land  near  Ghi-  in  the  time  specified,  and  Honore  failed  to 

cago.  111.     Hutchings  advanced  the  entire  pay  any  part  of  the  sum   advanced.     In 

purchase  price,  took  a  conveyance  to  him-  1869,  Hutchings  sold  the  land  for  $100,000, 

self,   and   executed  a  writing   in   which,  and  refused  to  pay  any  part  of  the  profits 

among  other  things, '  it  is  agreed  between  to    Honore.      But    it   was    decided    that 

said  parties,  that  when  said  land  is  sold  Hutchings  held  the  legal  title  to  one  half 

said   Hutchings   is   to   have  first  his  six  the  land  in  trust  for  Honore,  and  must  ac- 

thousand  dollars  so  advanced,  and  ten  per  count  for  the  proceeds   according  to  the 

cent,   interest,  and   the   profits   over  and  agreement." 

above  said  sum  are  to  be  equally  divided  ^  Wright  v.  Bates,  13  Vt.  341  ;  Wood- 
between  said  parties This  arrange-  ward   v.   Pickett,   8   Gray   (Mass.),  617; 

200 


WHEN    THEY    CONSTITUTE   A    CONDITIONAL   SALE.       [§§  274,  275. 

a  conveyance  of  land  be  made  in  fee,  and  the  grantee  give  back  a 
bond  to  reconvey  upon  repayment  of  the  consideration  money,  and 
to  permit  the  grantor  to  occupy  the  premises  at  a  rent  equal  to 
the  interest  on  the  consideration,  these  are  parts  of  one  and  the 
same  transaction,  and  constitute  a  mortgage.^ 

The  owner  of  land  occupied  by  him  as  a  homestead  executed 
an  absolute  conveyance  of  it  in  consideration  of  one  thousand  dol- 
lars, and  the  grantee  at  the  same  time  executed  with  him  a  joint 
instrument  stipulating  that  the  grantor  should  have  the  privi- 
lege of  repurchasing  the  premises  for  the  same  price,  at  any  time 
within  twelve  months,  and  should  remain  in  possession,  and  pay 
rent  at  the  rate  of  forty  dollars  per  month  until  such  repurchase, 
or  the  expiration  of  the  twelve  months.  He  remained  in  posses- 
sion eleven  years,  and  paid  over  twelve  hundred  dollars  as  rents. 
The  transaction  was  held  to  be  a  mortgage  ;  that  the  rent  was  a 
devise  to  screen  usury,  and  that  the  debt  had  been  extinguished  by 
the  payments  made.^ 

274.  The  continued  possession  of  the  grantor,  as  is  else- 
where noticed  with  reference  to  proving  by  parol  that  an  absolute 
conveyance  is  not  a  sale,  is  a  circumstance  tending  to  show  that 
the  agreement  for  repurchase,  in  connection  with  the  deed,  consti- 
tutes a  mortgage  rather  than  a  conditional  sale.^ 

275.  Inadequacy  of  price.  —  Among  the  circumstances  which 
are  considered  as  of  weight,  as  tending  to  show  that  an  absolute 
conveyance  accompanied  by  an  agreement  to  reconvey  is  a  mort- 
gage rather  than  a  conditional  sale,  is  a  great  inadequacy  in  the 
price  for  which  the  conveyance  was  made.  This  alone  will  not 
authorize  a  court  to  give  the  grantor  a  right  to  redeem  ;  but  in 
connection  with  other  evidence  affords  much  ground  of  inference 
that  the  transaction  was  not  really  what  it  purports  to  be."*     In- 

Preschbaker  f.  Feaman,32llL475;  Ewart  *  See  §  329;   Thoriiborough  r.  Baker, 

V.  WallinjT,  42  IlL  453.  3  Sw.  631 ;  Davis  v.  Thomas,  1   R.  &  M. 

1  Woodward  v.  Pickett,  8  Gray,  617.  506  ;  Williams  r.  Owen,  5  M.   &  C.  303; 

2  In  Boatri^rht  v.  Peck,  .33  Tex.  68.  Douglass  v.  Culverwell,  3  Gif.  251  ;  Lang- 
8  See   §   329,  the   cases   being  equally  ton   v.    Horton,    5    Beav.    9 ;    Russell    v. 

applicable  here.  Ransone  v.  Frayser,  10  Southard,  12  How.  139 ;  Campbell  v. 
Leigh  (Va.),  592;  Gibson  v.  Eller,  13  Dearborn,  109  Mass.  130,  144;  Freeman 
Ind.  124.  V.  Wilson,  51  Miss.  329  ;  Davis  v.  Stone- 

201 


§  276.]         ABSOLUTE   DEED   AND   AGREEMENT   TO   RECONVEY. 

adequacy  of  price,  to  be  of  controlling  effect,  must  be  gross.^  If  it 
be  very  inadequate,  it  is  a  circumstance  tending  to  show  a  loan  and 
mortgage ;  but  it  is  not  conclusive.  Nor  would  the  fact  of  the 
adequacy  of  the  price,  taken  in  connection  with  the  absence  of  any 
obligation  to  repay  the  money,  be  conclusive  that  a  conditional 
sale  was  intended.^  On  the  other  hand,  the  fact  that  the  consid- 
eration is  fully  equal  to  the  value  of  the  land  is  evidence  of  some 
weight  that  the  transaction  was  a  sale  and  not  a  mortgage,  because 
men  in  making  a  loan  do  not  usually  advance  the  full  amount  of 
the  land. 3 

If  the  transaction  creates  no  debt  or  loan,  but  only  a  right  to 
repurcliase,  it  is  immaterial  whether  the  consideration  for  the  re- 
conveyance is  fixed  at  the  same  price  paid  for  the  conveyance,  or 
at  an  advanced  price.^ 

276.  Not  material  that  the  instruments  are  recorded  as  a 
mortgage.  —  When  the  transaction  is  otherwise  a  conditional 
conveyance  and  not  a  mortgage,  the  latter  character  is  not  im- 
parted to  it  by  the  mere  fact  that  the  instruments  are  recorded  as 
a  mortgage.^  The  acts  or  declarations  of  one  party  in  reference 
to  the  transaction  afterwards  will  not  change  its  character.  The 
transaction  remains  what  the  parties  made  it  in  the  beginning, 
until  by  mutual  agreement  they  change  it.  It  can  hardly  be  said 
that  the  treatment  of  an  absolute  deed  as  conditional  by  the 
grantee  can  make  it  a  mortgage.  If  it  was  a  mortgage  in  the 
beginning,  his  admission  of  the  fact  only  relieves  the  mortgagor 
from  proving  it.  If  it  was  not  a  mortgage  in  the  beginning,  his 
treating  it  as  such  has  no  effect  unless  the  mortgagor  concurs  in 

street,  4  Inrl.  101  ;    Pearson  v.  Seay,  35  i  Elliott  v.  Maxwell,  7  Ired.  (N.  C.)  Eq. 

Ala.  612;  Steel  v  Black,  3  Jones  (N.  C.)  246.                               • 

Eq.    427;    Streator   v.   Jones,   3    Hawks  2  grown  y.  Dewey,  2  Barb.  28;  S.C.I 

(N.  C),  423  ;  Stellers  v.  Stalcup,  7  Ired.  Sand.  Ch.  56. 

(N.  C.)  Eq.  13;  Kemp  v.  Earp,  lb.  167;  »  Carr   v.    Rising,    62   111.    14,    19,  per 

Wharf  V.  Howell,  5  Binn.  (Pa.)   499      In  Walker,  J. 

this  case  a  lot  worth  $800  was  conveyed  in  *  Glover   v.  Pay n,  19    Wend.    (N.   Y.) 

consideration  of  $200,  with  an  agreement  518;    West    v.    Hendrix,    28    Ala.    226; 

to  reconvey  upon  the  payment  of  this  sum  French  v.  Sturdivant,  8  ]\Ie.  246  ;  Pitts  v. 

within  three  months.    Thompson  v.  Banks,  Cable,  44  111.  103. 

2  Md.   Ch.  430;  Crews  r.  Thrcadgill,  35  &  Morrison  i>.  Brand,  5  Daly    (N.   Y.), 

Ala.  334;  Brown  v.  Dewey,  2  Barb.  N.  Y.  40  ;  Jackson  v.  Richards,  6  Cow.  (N.  Y.) 

28.  617,  619. 
202 


WHEN   THEY   CONSTITUTE   A   CONDITIONAL   SALE.        [§  277. 

SO  treating  it,  so  that,  in  fact,  by  mutual  agreement,  the  character 
of  the  instrument  is  changed. ^ 

277.  That  a  conditional  sale  and  not  a  mortgage  was  in- 
tended may  in  equity  be  shown  by  parol  evidence.  —  For  this 
purpose  evidence  of  the  repeated  assertions  of  the  grantee  that 
he  had  bought  the  property  and  owned  it,  of  his  repeated  de- 
nials that  tlie  grantor  had  any  interest  in  it,  and  of  acts  of  own- 
ership inconsistent  with  tlie  position  of  a  mere  mortgagee,  may  be 
received.2  j^^^j^  if  ^\-^q  instrument  on  its  face  be  a  mortgage,  or  if 
a  deed  and  bond  of  defeasance  be  executed  together  as  part  of  the 
same  transaction,  and  therefore  constitute  a  mortgage,  parol  evi- 
dence is  not  admissible  to  show  that  the  parties  intended  that  the 
transaction  should  operate  as  a  conditional  sale.  No  agreement  or 
intention  of  the  parties,  whether  at  the  time  of  the  transaction 
or  subsequently,  can  change  the  redeemable  character  of  a  mort- 
gage.^ In  the  one  the  proof  raises  an  equity  consistent  with  the 
writing,  and  in  the  other  the  proof  would  contradict  the  writing.* 

And  on  the  other  hand,  parol  evidence  is  admissible  to  show 
that  a  formal  conveyance,  with  a  defeasance  executed  same  time, 
or  afterwards,  constituted  in  fact  a  mortgage,  and  not  a  condi- 
tional sale.^ 

But  although  a  formal  conveyance  can  be  shown  to  be  a  mort- 
gage by  extrinsic  evidence,  a  formal  mortgage  cannot  be  shown  to 
be  a  conditional  sale.^  The  reason  of  the  rule,  that  a  formal  con- 
veyance may  be  shown  by  pai'ol  to  be  a  mortgage,  while  a  formal 
mortgage  cannot  be  shown  to  be  a  conditional,  by  the  same  means, 
is,  that  "  in  the  one  case  such  proof  raises  an  equity  consistent 
with  the  writing,  while  in  the  other  it  would  contradict  the  writ- 

1  See    on   this   j?oint,    but   not   wholly  Ludwick,  31  Pa.  St.   131,  138;  Brown  v. 

agreeing  with  the  statement  in   tlie  text,  Nickle,  6  Barr  (Pa.),  391. 

Holmes  v.  Fresh,  9  Mo.  201  ;  Thomaston  ■*    Kunkle   v.    Wolfersbergcr,    6   Watts 

v.  Stimpson,  8  Shep.  (Me.)   195;  Nichols  (Pa.),  126. 

V.  Reynolds,  1  R.  I.  30.  '"  Reitenbaugh  ;;.  Ludwick,  31   Pa.  St. 

'■^  See  §  246;  Newcomb  ?;.  Bonham,   1  131;  Farmer  v.  Grose,  42   Cal.   169;  and 

Vern.  8,  214,  232;  Langton  u.  Horton,  5  see  Gay  v.  Hamilton,  33   Cal.   686;  Till- 

Beav.  9;  Han  ford  r.  Blessing,  80  111.  188.  son    v.   Moulton,   23   111.    648;    Heath   v. 

3  Wing  V.  Cooper,  37  Vt.  169;  Woods  Williams,  30  Ind.  495. 

V.   Wallace,   22    Pa.   St.  171  ;    Colwell  v.  '^  MeClintock  v.  IMcClintock,  3  Brews. 

Woods,   3  Watts  (Fa.),   188;   Kunkle  v.  (Pa.)  76;  Wharf  v.  Howell,  5  Binn.  (Pa.) 

Wolfersbergcr,  6  lb.  126;  Reitenbaugh  v.  499;  Reitenbaugh  v.  Ludwick,  31  Pa.  St. 

138. 

203 


§§  278,  279.]        ABSOLUTE   DEED   AND    AGREEMENT    TO   RECONVEY. 

ing."  1  When  the  transaction  is  a  sale,  with  a  right  of  repurchase, 
and  the  grantor  claims  it  to  be  a  mortgage,  a  bill  will  lie  to  have 
the  sale  established. ^ 

Such  evidence  is  inadmissible  at  law.^  It  is  received  only  in 
equity,  and  when  there  exist  equitable  grounds  for  its  admission. 
It  is  held,  too,  that  the  rule  admitting  parol  evidence  in  equity 
for  the  purposes  mentioned  does  not  extend  to  an  official  convey- 
ance, such  as  the  deed  of  a  sheriff  selling  under  process.'*  Such 
officer  has  no  power  to  make  any  sale  other  than  an  absolute 
one. 

278.  Slight  circumstances  may  determine.  — In  any  case 
where  a  party  claims  to  have  purchased  securities  at  very  much 
less  than  their  real  value,  if  the  evidence  be  not  clear  whether 
the  transaction  was  a  sale  of  the  securities  or  only  a  mortgage  of 
them,  very  slight  circumstances  showing  that  the  transfer  was  not 
understood  at  the  time  to  be  absolute,  but  was  made  to  secure  the 
repayment  of  the  sum  advanced,  may  be  sufficient  to  turn  the 
scale.^  And  so  where  there  is  an  agreement  to  reconvey,  very 
shght  circumstances  will  suffice,  in  relation  to  such  transactions, 
to  determine  their  character —  whether  mortgages  or  absolute  con- 
veyances, with  a  stipulation  securing  the  grantor  a  reconveyance 
upon  certain  terms  and  within  a  certain  time.*^  Thus  the  circum- 
stance that  the  reconveyance  is  to  be  made  upon  payment  of  the 
precise  amount  of  the  consideration,  with  interest,  is  taken  into 
consideration  as  favorinp;  the  conclusion  that  a  loan  was  made.'' 

279.  When  it  is  doubtful  whether  the  transaction  is  a  mort- 
gage or  a  conditional  sale,  it  will  generally  be  treated  as  a  mort- 
gage,^ although  it  is  in  some  of  the  cases  said  that  the  transaction 

1  Per  Gibson,  C.  J.,  in  Kunkle  v.  Wolf-  ^  Wake  v.  Dimick,  10  Allen  (Mass.), 
ersberger,  6  Watts  (Pa.),  126  ;    Woods  v.     364. 

Wallace,  t>2  Pa.  St.  171.  ^  Hickox  v.  Lowe,  10  Cal.  197.     See  § 

2  Eich  V.  Doane,  35  Vr.  124.  275. 

3  Webb  V.  Rice,  6  Hill  (N.  Y.),  219;  «  See  §§  335,  336;  Russell  v.  Southard, 
Bragg  V.  Massie,  38  Ala.  89;  McClanu  v.  12  How.  139;  O'Neill  v.  Capelle,  62  Mo. 
White,  .5  Minu.  178  ;  Belote  v.  Morrison,  202  ;  P.rant  v.  Robertson,  16  Mo.  469  ;  Tur- 
8  Minn.  87  ;  contra,  Tillson  v.  Moulton,  ner  v.  Kerr,  44  Mo.  429  ;  Desloge  v.  Ran- 
23  111.  648.  ger,  7   Mo.  327  ;    Heath  v.  Williams,  30 

*  Ryan  v.  Dox,  25  Barb.  (N.  Y.)  440.         Ind.  495  ;  Bacon  v.  Brown,  19  Conn.  34 ; 

*  McKinney  v.  Miller,  19  Mich.  142,  Trucks  r.  Lindsey,  18  Iowa,  504  ;  Baugher 
148.  V.  Merryman,  32  Md.  185. 

204 


WHEN   THEY    CONSTITUTE   A   CONDITIONAL   SALE.  [§  280. 

appearing  upon  its  face  to  be  a  conditional  sale  will  be  held  to  be 
such  when  no  circumstances  appear  showing  an  intention  that  it 
should  be  considered  a  mortgage.^  But  generally  courts  of  equity 
incline  against  conditional  sales,  and  give  the  benefit  of  any  doubt 
arising  upon  the  evidence  in  favor  of  the  grantor's  right  to  re- 
deem .^ 

"  It  is  unquestionably  true,  that  in  cases  where  upon  all  the 
circumstances  the  mind  is  uncertain  whether  a  security  or  a  sale 
was  intended,  the  courts,  when  compelled  to  decide  between  them, 
will  be  somewhat  guided  by  prudential  considerations,  and  will 
consequently  lean  to  the  conclusion  that  a  security  was  meant,  as 
more  likely  than  a  sale  to  subserve  the  ends  of  abstract  justice 
and  avert  injurious  consequences.  And  where  the  idea  that  a 
security  was  intended  is  conveyed  with  reasonable  distinctness  by 
the  writings,  and  no  evil  practice  or  mistake  appears,  the  court 
will  incline  to  regard  the  transactions  as  a  security  rather  than  a 
sale,  because  in  such  a  case  the  general  reasons  which  favor 
written  evidence  concur  with  the  reason  just  suggested,"  '^ 

280,  The  same  considerations  apply  to  an  assignment  of  a 
mortgage,  accompanied  by  an  agreement  to  reassign  within  a  time 
mentioned.  In  Henri/  v.  Davis,  ^  the  Chancellor  said  :  "  It  is 
clearly  established  by  the  answer  and  proofs  that  the  bond  and 
mortgage  were  assigned  by  the  plaintiff  to  the  defendant  by  way 


1  Sweiland  v.  Swetland,  3  Mich.  482  ;  15  111.  553;  18  lb.  101  ;  Miller  v.  Thomas, 
Eobinson  v.  Cropsey,  2  Edw.  Ch.  (N.  Y.)  14  HI.  428  ;  Pensoneau  v.  Pulliam,  47  IlL 
138.  58;  Turnipseed  v.  Cunningham,  16  Ala, 

2  Fee  V.  Cobine,  11  Ir.  Eq.  Rep.  406;  501;  Holton  v.  Meighen,  15  Minn.  69, 
Trucks  V,  Lindsey,  18  Iowa,  504 ;  Glover  "A  resort,  however,  to  a  formal  con- 
V.  Payn,  19  Wend.  (N.  Y.)  518;  Robin-  ditional- sale,  as  a  device  to  defeat  the 
son  V.  Cropsey,  6  Paige  (N.  Y.),  480;  equity  of  redemption,  will,  of  course, 
Turnipseed  v.  Cunningham,  16  Ala.  501  ;  when  shown,  be  unavailing  for  that  pur- 
McNeill  V.  Norsworthy,  39  Ala.  156;  pose.  And  the  possibility  of  such  resort, 
Locke  u.  Palmer,  26  Ala.  312;  Ilickox  v.  together  with  other  considerations,  has 
Lowe,  10  Cal.  197;  McKinney  i'.  Miller,  driven  courts  of  equity  to  adopt  as  a  rule, 
19  Mich.  142;  Cornell  v.  Hall,  22  Mich,  that,  when  it  is  doubtful  whether  the  trans- 
877  ;  Poindexter  v.  McCannon,  1  Dev.  action  is  a  conditional  sale  or  a  mortgage, 
Eq.  (N.  C.)  373 ;  Dougherty  v.  McC'^lgan,  it  will  be  held  to  be  the  latter."  Trucks  v. 
6  G.  &  J.  (Md.)  275  ;  Artz  v.  Grove,  21  Lindsey,  18  Iowa,  504,  per  Cole,  J. 

Md.  456 ;  Baugher  v.  Merryman,  32  Md.         '^  Cornell    v.    Hall,  22    Mich.   383,  per 

185;  Freeman  v.  Wilson,  51   Miss.  329;  Graves,  J. 
Scott  1-.  Henry,   13  Ark.  112;  Heath  v.        *  7  Johns.  (N.  Y.)  Ch.  40. 
Williams,  30  Ind.  496  ;  Bishop  v.  Williams, 

205 


§  281.]        ABSOLUTE   DEED  AND   AGREEMENT   TO   RECONVEY. 

of  mortgage,  to  secure  the  payment  of  $225  by  a  given  day ;  and 
any  agreement  that  the  assignment  was  to  be  an  absolute  sale, 
without  redemption  upon  default  of  payment  on  the  day,  was  un- 
conscientious, oppressive,  illegal,  and  void.  The  equity  of  redemp- 
tion still  existed  in  the  plaintiff,  notwithstanding  any  such  agree- 
ment." The  same  considerations  apply  also  to  an  assignment  of 
a  lease  made  in  connection  with  an  agreement  to  reassign,  and  to 
the  determination  of  the  question  whether  they  constitute  a  mort- 
gage or  a  conditional  sale  of  the  leasehold  estate.^  But  an  abso- 
lute lease  is  not  deemed  a  mortgage,  because  the  rent  is  to  go  in 
satisfaction  of  a  debt.^ 

281.  When  a  mortgage  rather  than  a  trust.  —  A  debtor  con- 
veyed all  his  real  estate  to  one  of  his  creditors  by  an  absolute  deed, 
the  creditor  making  a  declaration  of  trust  that  he  would  sell  the 
property,  pay  the  debt  due  himself,  and  sums  to  be  advanced 
by  him  for  the  payment  of  other  debts  of  the  grantor,  and  after 
retaining  a  certain  sum  for  commissions  would  reconvey  what 
might  remain  of  the  property  to  the  grantor.  The  transaction 
was  adjudged  to  be  a  mortgage,  and  not  an  assignment  for  the 
benefit  of  creditors,  and  that  no  one  but  the  grantor  could  call 
upon  the  grantee  to  account.^  The  equity  of  redemption  was  still 
subject  to  attachment  by  the  creditors  of  the  grantor. 

But  a  conveyance  expressly  in  trust  to  pay  debts,  and  after  the 
debts  are  paid  in  trust  for  one  of  the  grantors,  was  held  not  to  be 
a  mortgage ;  ^  and,  therefore,  the  creditors  could  not  maintain  a 
suit  for  foreclosure  or  sale.  In  such  a  conveyance  a  covenant  on 
the  part  of  the  debtor  to  pay  the  debts  would,  doubtless,  make  a 
mortgage  of  it.^ 

1  Polhemus   v.   Trainer,   30    Cal.  685;    win,  5  Ves.  834;  Bell  v.  Carter,  17  Beav. 
and  see  King  v.  King,  3  P.  Wms.  358  ;     11  ;  Jenkin  v.  Row,  5  Dc  G.  &  S.  107. 
Goodman  v.  Grierson,  2  Ba.  &  Be.  278.  *  M'Menomy  v.  Murray,  3  Johns.  (N. 

2  Ilalot;.  Schick,  57  Pa.  St.  319.  Y.)   Ch.  435;    Charles  v.  Chigett,  3  Md. 
8  Taylor  v.  Cornelius,  60  Pa.  St.  187.     82  ;  Marvin  v.  Titsworth,  10  Wis.  320. 

Also,  see  Vance  v.  Lincoln,  38  Cal.  586  ;        ^  Taylor  v.  Emerson,  4  Dru.  &  War. 
Koch  V.  Briggs,  14  Cal.  256  ;  Comstock  v.     117;    Holmes   v.  Matthews,  3   Eq.   Rep. 
Stewart,  Walk.  (Mich.)  110;  Myer's  Ap-    450. 
peal,  42  Pa.  St.  518;  Chambers  v.  Gold- 
206 


CHAPTER  VIII. 

PAROL  EVIDENCE  TO  PROVE  AN  ABSOLUTE  DEED  A  MORTGAGE. 

1.    The  Grounds  upon  tvhich  it  is  admitted. 

282.  It  is  a  settled  rule  and  practice  of  courts  of  equity 
to  set  aside  a  formal  deed,  and  allow  the  grantor  to  redeem  upon 
proof,  even  by  parol  evidence,  that  the  conveyance  was  not  a  sale, 
but  merely  a  security  for  a  debt,  and  therefore  a  mortgage.  Ex- 
cept where,  as  in  New  Hampshire  and  Georgia,  the  exercise  of 
this  power  is  prohibited  by  statute,  there  is  probably  now  no  dis- 
sent anywhere  from  the  doctrine,  that  in  equity  a  deed  may  be 
converted  into  a  mortgage  whenever  there  are  proper  equitable 
grounds  for  the  exercise  of  the  power.  To  this  extent  there  is 
substantial  uniformity  in  the  decisions  of  the  courts  of  the  United 
States  and  of  the  several  states.  But  as  to  the  grounds  upon  which 
this  equitable  power  is  exercised  there  is  much  diversity  of  opin- 
ion, and  there  is  also  considerable  diversity  of  adjudication  in  the 
application  of  the  doctrine.  Under  what  circumstances  and  upon 
what  evidence  this  power  shall  be  exercised,  it  is  only  reasonable  to 
expect  considerable  divergence  of  jjractice  in  different  courts.  The 
cases  in  which  the  courts  have  been  called  upon  to  receive  parol 
evidence  to  show  that  a  deed  absolute  in  terms  is  a  raortoracfe  are 
very  numerous.  For  these  reasons,  and  because  the  subject  is  of 
much  practical  importance,  a  statement  of  the  rule  in  equity  upon 
it  in  each  of  the  states  is  given. 

At  law  it  is  generally  agreed  that  parol  evidence  to  show  that  a 
deed  absolute  on  its  face  was  intended  only  as  a  mortgage  is  inad- 
missible.^ 

1  Bryant  v.  Crosby,  36  Me.  562  ;  Benton  5  Minn.  178  ;  Belote  v.  Morrison,  8  Minn. 

V.  Joneji,  8  Conn.  186;  Reading  v.  Wes-  87;    Moore   v.  Wade,    8    Kans.   380.     In 

ton,  8  Conn.   117;  Hogel    v.   Lindeli,  10  Illinois  it  is  admissible  at  law  as  well. 

Mo.  483  ;  Farley  v.  Gooeher,  1 1  Iowa,  570 ;  Tillson  v.  Moulton,  23  111.  648  ;  Miller  v. 

Webb  u.  Rice,  6  Hill  (N.  Y.),  219;  Bragg  Thomas,   14   111.  428;    Coates   v.  Wood- 

V.  Massie,  38  Ala.  89  ;  McClure  v.  White,  worth,  13  111.  654.   So  in  Wisconsin  ;  see 

207 


§§  283,  284.]      PAROL  EVIDENCE  TO  PROVE, 

Parol  evidence  is  admissible  in  equity  to  show  that  a  deed  ab- 
solute in  form  is  in  fact  a  mortgage,  not  because  the  rules  of  evi- 
dence are  different  in  equity  from  what  they  are  at  law,  but  be- 
cause the  jurisdiction  and  power  of  the  court  with  reference  to 
dealing  with  the  facts  presented  are  different.  The  rules  of  evi- 
dence are  the  same  in  both  courts. 

283.  To  obtain  relief  the  plaintiff  must  have  equitable 
grounds  for  it. —  The  grounds  on  which  courts  of  equity  admit 
oral  evidence,  to  show  that  a  deed  absolute  in  form  is  in  fact  a 
mortgage,  are  purely  equitable,  and  relief  is  refused  whenever  the 
equitable  consideration  is  wanting.  Therefore,  when  a  debtor 
has  made  an  absolute  conveyance  of  his  land  to  one  creditor  for 
the  purpose  of  defrauding  his  other  creditors,  he  is  in  no  condition 
to  ask  a  court  of  equity  to  interfere  actively  in  his  behalf  to  help 
him  get  his  land  back  again,  and  thus  secure  to  him  the  fruits  of 
his  fraudulent  devices.^  "  One  who  comes  for  relief  into  a  court 
whose  proceedings  are  intended  to  reach  the  conscience  of  the  par- 
ties must  first  have  that  standard  applied  to  his  own  conduct  in 
the  transactions  out  of  which  his  grievance  arises.  If  that  con- 
demns himself,  he  cannot  insist  upon  applying  it  to  the  other 
party."  ^  An  oral  agreement  between  the  debtor  and  creditor 
who  took  the  conveyance,  whereby  the  latter  agreed  to  reconvey 
the  land  upon  payment  of  the  debt  due  liim,  is  not  deemed  in 
such  case  an  equitable  ground  for  relief.  The  court  will  interfere 
only  for  the  benefit  of  those  whom  the  debtor  intended  to  defraud. 
It  is  true  that  a  grantee,  whose  rights  were  not  infringed,  cannot 
set  up  the  grantor's  fraud  against  other  creditors  in  the  convey- 
ance, to  defeat  any  legal  claim  or  interest  which  the  fraudulent 
debtor  may  seek  to  enforce.  But  the  difhculty  is,  that  when  the 
debtor  has  no  legal  right,  but  comes  into  equity  seeking  equitable 
relief,  he  has  in  such  case  no  equitable  standing,  and  must  go  out 
of  court, 

284.  The  English  decisions  are  to  the  effect  that  in  equity  an 
absolute  conversance  may  be  construed  to  be  a  mortgage  when  the 

§320.     In   Pennsylvania,   §  312,    and  Arnold  v.  Mattison,  SRich.  (S.  C.)  Eq.  153, 

Texas,    §   316,    there  are    no    chancery  and  see  Webber  v.  Farmer,  4  Bro.  P.  C. 

courts,  and  this  evidence  is  admitted  at  170;  Baldwin  v.  Cawthorne,  19  Ves.  166. 
law.  2  ]vi,.  Justice  Wells,  in  Ilassam  v.  Bar- 

1  Hassam  v.  Barrett,   115   Mass.  256;  vctt,  supra. 
■      208 


AN   ABSOLUTE   DEED    A    MORTGAGE.  [§§  285,  286. 

defeasance  has  been  omitted  by  fraud  or  accident ;  ^  when  the 
grantee  has  made  a  separate  defeasance,  although  merely  verbal ;  ^ 
or  when  by  the  payment  of  interest,  or  other  circumstances,  it 
appears  tliat  the  conveyance  was  intended  as  a  mortgage.^ 

285.  The  doctrine  in  the  United  States  Courts.  —  The  deci- 
sions of  the  Supreme  Court  of  the  United  States,  and  the  Circuit 
and  District  Courts,  are  uniform  in  admitting  parol  evidence  to 
show  that  an  absolute  conveyance  is  in  fact  a  mortgage,*  The 
admission  of  such  evidence  is  not  limited  to  cases  in  which  express 
deceit  or  fraud  in  taking  the  conveyance  in  that  form  is  shown. 
It  is  admitted  where  the  instrument  of  defeasance  has  been  "  omit- 
ted by  design  upon  mutual  confidence  between  the  parties."  It 
is  admitted  to  show  the  real  intention  of  the  parties,  and  the  real 
nature  of  the  transaction.  In  Russell  v.  Southard,  the  Supreme 
Court  declare  that  when  it  is  alleged  and  proved  that  a  loan  was 
really  intended,  and  the  grantee  sets  up  the  loan  as  a  payment  of 
purchase'  money,  and  the  conveyance  as  a  sale,  both  fraud  and  a 
vice  in  the  consideration  are  sufficiently  averred  and  proved  to 
require  a  court  of  equity  to  hold  the  transaction  to  be  a  mortgage  ; 
and  that  whenever  the  transaction  is  in  substance  a  loan  of  money 
upon  security  of  the  land  conveyed,  a  court  of  equity  is  bound  to 
look  through  the  forms  in  which  the  contrivance  of  the  lender 
has  enveloped  it,  and  declare  the  conveyance  to  be  a  mortgage. 

286  In  Alabama  a  court  of  equity  will  not  by  parol  evidence 
establish  a  deed  absolute  on  its  face  as  a  mortgage,  "  unless  the 
proofs  are  clear,  consistent,  and  convincing  "  that  it  w^as  not  in- 
tended as  an  absolute  purchase,  but  was  intended  as  a  security  for 
money .^     Such  evidence  seems  to  be  admitted  upon  the  ground  of 

1  Card  V.  Jaffray,  2  Sch.  &  Lef.  374 ;  Cripps  v.  Jee,  4  Bro.  C.  C.  472 ;  Sevier  v. 
England    v.   Codrington,    1    Eden,    169;     Greenway,  19  Ves.  413. 

Dixonv.  Parker,  2  Ves.  Sen.  219,  per  Lord  *  Russell   v.  Southard,   12    How.    139; 

Hardwicke;  Irnham  v.  Child,  1   Bro.  C.  Morris  v.  Nixon,  1    How.  118;  Sprigg  v. 

C.  92;  Lord  Portmore  v.  Morris,  2  lb.  Bankof  Mount  Pleasant,  14  Pet.  201,  208; 

219 ;    Lincoln  v.   Wright,  4  De  G.  &  J.  Hughes  v.  Edwards,  9  Wheat.  489  ;  Tay- 

16.  lor  V.  Luther,  2  Sum.  228  ;  Flagg  v.  Mann, 

2  Manlove  v.  Bale,  2  Vern.  84;  Lin-  lb.  486;  Jenkins  i;.  Eldridge,  3  Story,  181 ; 
coin  V.  Wright,  supra;  Whitfield  v.  Par-  Bentley  v.  Phelps,  2  Wood.  &  M.  426; 
fitt,  15  Jur.  852.  Wyman  t>.  Babcock,  2   Curtis,  386,398; 

3  Alienby  v.  Dalton,  5  L.  J.  K.  B.  312  ;  S.  C.  19  How.  289. 

6  Phillips  V.  Croft,  42  Ala.  477. 
VOL.  1.  14  209 


§§  287,  288.]       PAROL  EVIDENCE  TO  PROVE 

fraud,  accident,  or  mistake.^     It  is  in  equity  and  not  at  law  that 
parol  evidence  is  admissible  in  such  cases.^ 

287.  In  Arkansas  parol  evidence  is  admissible  to  show  an 
absolute  deed  to  be  a  mortgage,^  and  the  ground  of  its  admission 
is  stated  in  some  of  the  cases  to  be  fraud  or  mistake  ;  ^  but  in  later 
cases  it  seems  to  be  held  generally  admissible  to  show  the  inten- 
tion of  the  parties,  and  the  fact  that  the  transaction  was  in  fact  a 
mortgage.^ 

288.  In  California  parol  evidence  is  admissible  in  equity  to 
show  that  a  deed  absolute  upon  its  face  was  intended  as  a  mort- 
gage, and  such  evidence  is  not  restricted  to  cases  of  fraud,  acci- 
dent, or  mistake.  Evidence  of  the  circumstances  and  relations  ex- 
isting between  the  parties  is  admitted,  not  for  the  purpose  of  con- 
tradicting or  varying  the  deed  but  to  establish  an  equity  superior 
to  its  terms.  The  deed  must  speak  for  itself;  but  the  objects  and 
purposes  of  the  parties  in  executing  the  instrument  may  be  in- 
quired into.  Fraud  in  the  use  of  the  deed  is  as  much  a  ground 
for  the  interposition  of  equity  as  fraud  in  its  creation. 

In  Pierce  v.  Rohinson^^  Mr.  Justice  Field  forcibly  and  clearly 
declares  these  to  be  the  true  grounds  for  the  admission  of  parol 
evidence  to  show  that  a  deed  absolute  in  its  terms  is  in  fact  a 
mortgage.  In  further  illustration  of  the  reason  of  the  rule,  he 
says:  "  Unless  parol  evidence  can  be  admitted,  the  policy  of  the 
law  will  be  constantly  evaded.  Debtors,  under  the  force  of  press- 
ing necessities,  will  submit  to  almost  any  exactions  for  loans  of  a 

1  English  V.  Lane,  1  Jfort.  (Ala.)  32S;  ^  Anthony  v.  Anthony,  23  Ark.  479. 
West  V.  Hendrix,  28  Ala.  226;  Wells  v.  ^  Pierce  r.  Eobinson,  13  Cal.  116 ;  over- 
Morrow,  38^Ala.  125;  Brantley  i-.  West,  ruling  the  earlier  cases  of  Lee  v.  Evans,  8 
27  Ala.  542;  Locke  v.  Palmer,  26  Ala.  Cil.  424,  and  Low  v.  Henry,  9  Cal.  538; 
312  ;  Bryan  v.  Cowart,  21  Ala.  92  ;  Parish  restricting  such  evidence  to  cases  of  fi'aud, 
V.  Gates,  29  Ala.  254;  Crews  v.  Thread-  accident,  or  mistake.  And  see,  also,  .Joha- 
gill,  35  Ala.  334;  Bishop  v.  Bishop,  13  son  u.  Sherman,  15  Cal.  287,  291;  Lodge 
Ala.  475.  V.  Tiirnian,  24  Cal.  390  ;   Cunningham  v. 

2  Bragg  V.  Massie,  38  Ala.  89,  106  ;  Hawkins,  24  Cal.  403 ;  Gay  v.  Hamilton, 
Jones  V.  Trawick,  31  Ala.  256;  Parish  v.  33  Cal.  686  ;  Hopper  v.  Jones,  29  Cal.  18; 
Gates,  29  Ala.  261.  Jackson  v.  Lodge,  36  Cal.  28;  Vance  v. 

3  Johnson  v.  Clark,  5  Ark.  321  ;  Scott  Lincoln,  38  Cal.  586;  Farmer  i;.  Grose,  42 
V.  Henry,  13  Ark.  112;  McCarron  v.  Cas-  Cal.  169  ;  Raynor  v.  Lyons,  37  Cal.  452; 
6idy,  18  Ark.  34.  Kuhn  v.  Rumpp,  46  Cal.  299. 

*  Blakemore  v.  Byrnside,  7  Ark.   505  ; 
Jordan  v.  Penno,  13  Ark.  593. 

210 


AN   ABSOLUTE   DEED   A   MORTGAGE.  [§§  289,  290. 

trifling  amount,  compared  with  the  vahie  of  the  property,  and  the 
equity  of  redemption  will  elude  the  grasp  of  the  court,  and  rest 
in  the  simple  good  faith  of  the  creditor.  A  mortgage,  as  I  have 
observed,  is  in  form  a  conveyance  of  the  conditional  estate,  and 
the  assertion  of  a  right  to  redeem  from  a  forfeiture  involves  the 
same  departure  from  the  terms  of  the  instrument,  as  in  the  case 
of  an  absolute  conveyance  executed  as  security.  The  conveyance 
upon  condition  by  its  terms  purports  to  vest  the  entire  estate 
upon  the  breach  of  the  condition,  just  as  the  absolute  conveyance 
does  in  the  first  instance.  The  equity  arises  and  is  asserted,  in 
both  cases,  upon  exactly  the  same  principles,  and  is  enfoi'ced  with- 
out reference  to  the  agreement  of  the  parties,  but  from  the  nature 
of  the  transaction  to  which  the  right  attaches,  from  the  policy  of 
the  law,  as  an  inseparable  incident." 

It  is  declared  by  statute  that  every  transfer  of  an  interest  in 
real  estate,  other  than  in  trust  made  only  as  a  security  for  the  per- 
formance of  another  act,  is  to  be  deemed  a  mortgage  deed.^  The 
fact  that  the  transfer  was  made  subject  to  defeasance  may  be 
proved,  though  it  does  not  appear  by  the  terms  of  the  instrument. 

289.  In  Connecticut  the  court  in  a  recent  case  seemed  to  re- 
gard it  as  an  undecided  question  whether  parol  evidence  is  admis- 
sible to  show  that  an  absolute  deed  is  a  mortgage.^  In  early  cases 
it  was  held  that  such  evidence  was  inadmissible  in  courts  of  law, 
either  as  between  the  parties  or  between  third  persons. ^  An  ab- 
solute deed  may  be  shown  to  be  a  mortgage  by  evidence  from  any 
paper  signed  by  the  grantee,  showing  that  the  deed  was  given  as 
security  only.^  In  equity  parol  evidence  seems  to  have  been  admit- 
ted to  show  that  the  defeasance  was  omitted  by  fraud  or  mistake.^ 

290.  Dakota  Territory.  —  It  is  provided  that  every  transfer 
of  an  interest  in  real  estate  not  in  trust  made  as  a  security  for  the 
performance  of  another  act  is  to  be  deemed  a  mortgage ;  and  the 

1  Civil  Code,  1872,  §§   2924,  2925,  and  '»  Washburn   v.  Merrills,    1  Day,  139; 
amendment  1874,  p.  260.  Daniels  ij.  Alvord,  2  Root,   196;  Collins 

2  Osgood  r.  Thompson  Bank,  30  Conn.  v.  Tillou,  26  Conn.  368  ;  Bacon  v.  Brown, 
27.  19  Conn.  29  ;  Jarvis  ;•.  Woodruff,  22  Conn. 

8  Reading;  v.  Weston,  8  Conn.  1 17  ;  S.  C.  548 ;  Mills  v.  Mills,  26  Conn.  213  ;  French 

7  lb.  149;  Benton  r.  Jones,  8  Conn.  186.  v.    Burns,    35    Conn.   359  ;  Brainerd    v. 

*  Belton  t'.  Avery,  2  Root  (Conn.),  279;  Brainerd,  15  Conn.  575. 
French  v.  Lyon,  lb.  69. 

211 


§§  291,  292.]  PAROL   EVIDENCE  TO   PROVE 

fact  that  the   transfer  was  made  subject  to   defeasance  may   be 
proved,  though  it  does  not  appear  by  the  terms  of  the  instrument.^ 

291.  In  Florida  it  is  provided  that  all  conveyances  securing 
the  payment  of  money  shall  be  deemed  mortgages.  This  statute, 
however,  does  not  change  the  rule  as  to  the  admission  of  parol 
evidence  to  show  that  a  deed  absolute  on  its  face  was  intended  as 
a  mortgage ;  but  some  ground  for  equitable  interference  must  be 
shown,  such  as  fraud,  accident,  or  mistake  in  the  execution  of  the 
instrument.^  "This  question,"  says  Du  Pont,  C.  J.,  "has  been 
a  fruitful  source  of  litigation  in  the  courts  of  the  country,  and  there 
has  been  great  diversity  and  contradiction  in  the  adjudications  of 
the  several  states  constituting  the  late  Union.  In  some  of  them 
any  evidence  going  to  show  the  intention  of  the  parties  is  admis- 
sible to  fix  the  character  of  the  instrument ;  while  in  others  it  is 
held  that  such  evidence  only  as  tends  to  show  fraud,  accident,  mis- 
take, or  trust,  will  be  permitted.  We  are  not  aware  that  there  has 
been  any  authoritative  adjudication  of  the  question  in  this  state, 
and  it  is  now  presented  to  us  as  one  of  first  impression.  The 
theory  upon  which  the  former  class  of  adjudications  proceed  is, 
that  the  fact  of  a  deed  being  given  as  security  determines  its  char- 
acter, and  not  the  evidence  of  the  fact.  Also,  that  parol  evidence 
that  a  deed  is  a  mortgage  is  not  heard  in  contradiction  of  the  deed, 
but  in  explanation  of  the  transaction  to  prevent  the  perpetration 
of  fraud  by  the  mortgagee." 

292.  In  Georgia  it  is  provided  by  statute  that  a  deed  absolute 
on  its  face,  accompanied  with  possession  of  the  property,  shall  not 
be  proved,  at  the  instance  of  the  parties,  by  parol  evidence,  to  be 
a  mortgage  only,  unless  fraud  in  its  procurement  is  the  issue  to  be 
tried.^  Such  a  deed  passes  the  legal  title,  and  enables  the  grantee 
to  recover  possession  by  ejectment,  although  a  formal  mortgage 
does  not.^  It  may,  nevertheless,  be  used  as  security  for  a  debt.^ 
"  It  does  not  follow,  because  a  mortgage  is  only  security,  that 
every  security  is  only  a  common  mortgage."^  The  grantor  in 
possession    may  defend  his  possession  by  pleading   an   equitable 

1  Civil  Code,  1871,  §§  1610,  1612.  *  Code,  §  1969. 

-  Chaircs  v.  Brady,  10  Fla.  133  (1863).  ^  Broach  v.  Barfield,  57  Ga.  601,  604. 

8  Code,  1873,  p.  669  ;  and  see  Spence  v.  ^  Biggers  v.  Bird,  55  Ga.  650,  652. 
Steadman,  49  Ga.  133,  139. 

212 


AN   ABSOLUTE   DEED   A   MORTGAGE.  [§  293. 

plea  and  doing  equity  ;  that  is,  tendering  the  debt  and  interest. 
When  the  deed  has  served  its  purpose,  that  is,  when  the  debt  is 
discbai'ged,  the  facts  having  been  established  by  competent  evi- 
dence, the  creditor  will  be  compelled  to  reconvey.  He  is  treated 
as  holding  the  title  solely  in  trust  for  his  former  debtor.^ 

293.  In  Illinois  it  is  provided  by  statute  that  every  deed  of 
real  estate  intended  as  security,  though  absolute  in  terms,  sliall  be 
considered  as  a  mortgage. ^  In  order  to  change  an  absolute  sale 
into  a  mortgage,  the  evidence  must  clearly  show  the  intention  of 
parties  to  make  a  mortgage.  Slight  evidence  is  not  sufficient. 
An  absolute  sale  is  valid  if  intended.  To  overcome  the  express 
terms  of  the  deed,  a  debt  must  exist,  and  the  liability  to  pay  it. 
The  kind  of  parol  evidence  which  is  properly  receivable  to  show 
an  absolute  deed  to  be  a  mortgage  is  that  of  facts  and  circum- 
stances of  such  a  nature  as,  in  a  court  of  equity,  will  control  the 
operation  of  a  deed,  and  not  of  loose  declarations  of  parties  touch- 
ing their  intentions  or  understanding.  The  latter  is  a  dangerous 
species  of  evidence  upon  which  to  disturb  the  title  to  land,  being 
extremely  liable  to  be  misunderstood  or  perverted.  If  the  papers 
show  upon  their  face  a  conditional  sale,  or  a  sale  and  agreement 
for  repurchase,  to  make  the  transaction  a  mortgage  the  evidence 
must  do  more  than  create  a  doubt  as  to  the  character  of  the  trans- 
action. ^ 

Evidence  of  fraud,  or  undue  advantage  or  oppression,  is  allowed, 
as  tending  to  show  that  an  absolute  conveyance  should  be  re- 
garded as  a  mortgage.*  If  the  fact  be  established  by  parol  evi- 
dence that  there  was  a  loan  of  money,  equity  regards  the  deed  as 

1  Bipgers  v.  Bird,  supra;  Lackey  v.  mings,  57  111.  195 ;  Sutphen  v.  Cushman, 
Bostwick,  54  Ga.  45.  35  111.  186  ;   Eoberts  v.   Richards,  36  111. 

2  Rev.  Stat.  1874,  p.  713.  339  ;  Reigard  v.  McNeil,  38  III.  400;  Sny- 

3  Klock  V.  Walter,  70  111.  416,  and  cases  der  v.  Griswold,  37  111.  216  ;  Preschbaker 
cited  ;  Remington  v.  Campbell,  60  111.  516 ;  v.  Teaman,  32  111.  475  ;  Ennor  v.  Thomp- 
"Wilson  V.  McDowell,  78  111.514;  Dwen  v.  son,  46  III.  215;  Weider  v.  Clark,  27  111. 
Blake,  44  111.  135  ;  Heald  v.  Wright,  75  251  ;  Maxfield  v.  Patclien,  29  111.  39  ; 
111.  17  ;  Taintor  v.  Keys,  43  111.  332  ;  Price  Shaver  v.  Woodward,  28  111.  277  ;  De  Wolf 
V.  Karnes,  59  111.276;  Alwood  v.  Mans-  v.  Strader,  26  111.225;  Tillson  v.  Moul- 
field,  59  111.  496 ;  Shays  v.  Norton,  48  III.  ton,  23  111.  648  ;  Davis  v.  Hopkins,  15  111. 
100;  Christie  v.  Hale,  46  111.  120;  Hunter  519;  Smith  v.  Cremer,  71  111.  185;  Coates 
v.  Hatch,  45  III.  178;  Pitts  v.  Cable,  44  v.  Woodworth,  13  111.  654;  Miller  v. 
111.  103;  Parmelee  v.  Lawrence,  44  111.  Thomas,  14  111.  428;  Magnusson  r.  John- 
405  ;  Ewart  u.  Walling,  42  111.  453  ;  Silsbe  son,  73  111.  1.56. 

V.  Lucas,  36   111.   462;  Lindauer  v.  Cum-        ■*  Brown  v.  Gaffney,  28  111.  149. 

213 


§  293.]  PAROL  EVIDENCE  TO  PROVE 

a  security  for  the  repayment  of  the  money  loaned.^  To  establish 
this  fact,  a  parol  agreement  that  the  land  conveyed  should  be  held 
by  the  grantee  as  security  for  money  loaned  the  grantor,  or  paid 
for  his  benefit,  may  be  proved ;  ^  or  that  it  should  be  held  to 
indemnify  the  grantee  for  moneys  to  be  paid  by  him  on  the  debts 
of  the  grantor.^  In  short,  any  evidence  is  admissible  which  tends 
to  show  the  relations  between  the  parties,  or  to  show  any  other 
fact  or  circumstance  of  a  nature  to  control  the  deed,  and  establish 
such  an  equity  as  would  give  a  right  of  redemption.* 

Mr.  Justice  Beckwith  states  very  clearly  the  rule  governing  the 
admission  of  parol  evidence  in  such  cases  :  ^  "  In  determining 
whether  the  transaction  consummated  by  the  deed  in  question  was 
an  absolute  sale  or  should  be  regarded  merely  as  a  mortgage,  we 
entirely  disregard  the  testimony  of  those  witnesses  introduced  for 
the  purpose  of  establishing  their  understanding  of  the  nature  of 
the  transaction,  and  who  relate  conversations  of  the  parties.  The 
conveyance  purports  to  convey  an  absolute  estate  to  the  grantee, 
and  it  must  be  taken  as  the  exponent  of  the  rights  of  the  par- 
ties, unless  some  equity  is  shown,  not  founded  on  the  mere  alle- 
gation of  a  contemporaneous  understanding  inconsistent  with  the 
terms  of  the  deed,  but  independently  both  of  the  deed  itself  and 
of  the  understanding  with  which  it  was  executed.  The  right  to 
redeem  lands  conveyed  cannot  be  established  by  simply  proving 
that  such  was  the  understanding  on  which  the  deed  was  executed, 
because  equity,  as  well  as  tlie  law,  will  seek  for  the  understanding 
of  the  parties  in  the  deed  itself.  The  right  must  be  one  para- 
mount to,  and  independent  of,  the  terms  of  the  deed,  as  well  as 
of  the  understanding  between  the  parties  at  the  time  it  was  exe- 
cuted. Parol  evidence  is  admissible  so  far  as  it  conduces  to  show 
the  relations  between  the  parties,  or  to  show  any  other  fact  or 
circumstance  of  a  nature  to  control  the  deed,  and  to  establish 
such  an  equity  as  would  give  a  right  of  redemption,  and  no  fur- 
ther. In  the  application  of  this  rule,  parol  evidence  is  received 
to  establish  the  fact  that  a  debt  existed,  or  money  was  loaned  on 
account  of  which  the  conveyance  was  made  ;  for  such  facts  will, 
in  a  court  of  equity,  control  the  operation  of  the  deed.     So,  too,  in 

1  Wyiikoop   V.   Cowing,   21    111.    570;  2  jjeigard  v.  McNeil,  38  III.  400. 

Williams  v.  Bishop,  15  111.  555;  S.  C.  18  3  Roberts  v.  Richards,  36  111.  339. 

111.101;  Smith   v.  Sackett,    15   111.    530;  *  Sutphen  v.  Cushman,  35  111.  186. 

Davis  V.  Hopkins,  15  111.  520.  ^  Sutphen  v.  Cushman,  supra. 

214 


AN   ABSOLUTE    DEED   A    MORTGAGE.  [§§  294,  295. 

regard  to  any  other  fact  or  circumstance  having  the  same  opera- 
tion. From  some  expressions  of  opinion  in  cases  hitherto  decided 
by  this  court,  it  has  been  supposed  that  a  more  enlarged  rule  has 
been  adopted  in  this  state,  but  a  careful  examination  of  them 
will  show  that  this  court  has  never  departed  from  the  rule  we 
now  enunciate." 

294.  Indiana.  —  The  admission  of  parol  evidence  to  show  that 
an  absolute  deed  was  executed  merely  as  security  for  the  payment 
of  money,  or  the  performance  of  some  act,  is  a  well  settled  rule  in 
this  state. ^  The  ground  on  which  it  is  received  seems  to  be  fraud 
or  mistake  ;  and  the  attempt  to  set  up  such  a  deed  as  an  absolute 
conveyance  seems  to  be  regarded  in  itself  as  a  fraud.  The  proof 
that  a  mortgage  was  intended  must  be  clear  and  decisive.^ 

295.  In  Iowa  pai'ol  evidence  is  admissible,  on  the  ground  that 
to  declare  that  to  be  a  sale  which  was  really  a  mortgage  would  be 
a  fraud.3  Such  evidence  is  not  admitted  to  contradict  or  vary  the 
written  deed,  but,  as  an  exception  to  the  rule,  to  show  the  inten- 
tion of  the  parties.  The  burden  of  proving  that  a  mortgage  was 
intended  is  upon  the  party  seeking  to  establish  it  as  such,  and  the 
proof  must  be  clear,  satisfactory,  and  conclusive,*  and  even  then 
the  evidence  is  received  with  caution.  Inadequacy  of  the  consid- 
eration paid  is  a  strong  circumstance  to  support  the  claim  that  the 
conveyance  was  intended  to  operate  as  a  mortgage ;  and  the  fact 
that  the  grantor  remains  in  possession  is  also  to  be  considered 
in  determining  this  question.^  The  condition  and  conduct  of  the 
parties,  and  all  the  surrounding  circumstances,  will  be  weighed. 

1  Heath  r.  Williams,  30  Ind.. 495  ;  Davis  37  Iowa,  309;  Crawford  v.  Taylor,  42 
V.  Stonestrect,  4  Ind.  101  ;  Smith  v.  Parks,  Iowa,  260  ;  Gardner  v.  Weston,  18  Iowa, 
22  Ind.  59  ;  Ilayworth  r.  Worthington,  5  533;  Green  v.  Turner,  38  Iowa,  112; 
Blackf.  (Ind.)  361  ;  Blair/-.  Bass,  4  lb.  Wilson  v.  Patrick,  34  Iowa,  362  ;  Key  r. 
539;  Harbison  v.  Lemon,  3  lb.  51  ;  Con-  McCleary,  25  Iowa,  191 ;  Hyatt  r.  Cochran, 
well  V.  Evill,  4  lb.  67  ;  Cross  v.  Hipner,  7  37  Iowa,  309  ;  Childs  v.  Griswold,  19  Iowa, 
Ind.  359;  Crane  r.  Buchanan,  29  Ind.  362;  Sunderland  y.  Sunderland,  19  Iowa, 
571.  325;    Gardner  v.  Weston,  18  Iowa,  533; 

2  Conwcll  V.  Evill,  supra.  Cooper  v.  Skeel,  14  Iowa,  578  ;  Atkins  v. 

3  Roberts  i-.  McMahan,  4  Greene  (Iowa),  Faulkner,  1 1  Iowa,  326  ;  Corbit  i;.  Smith, 
34;  Johnson  v.  Smith,  39  Iowa,  549;  7  Iowa,  60;  Noel  r.  Noel,  1  Iowa,  423; 
Berberick  v.  Fritz,  39  Iowa,  700.  Holliday  i'.  Arthur,  25  Iowa,  19. 

*  Zuver  V.  Lyons,  40  Iowa,  510;  Corbit  ^  Wilson  v.  Patrick,  34  Iowa,  362; 
r.  Smith,  7  Iowa,  60  ;   Hvatt  v.  Cochran,     Trucks  v.  Lindsey,  18  Iowa,  504. 

215 


§§  296-299.]  PAROL   EVIDENCE   TO   PROVE 

296.  In  Kansas  it  is  declared  that,  although  such  evidence 
may  not  be  admissible  at  law,  it  is  in  equity.  Although  no  writ- 
ten defeasance  was  ever  executed  between  the  parties,  their  under- 
standing, intention,  or  agreement  may  be  shown  to  create  a  parol 
defeasance.  The  mortgage  results  from  the  facts  of  the  case,  and 
the  statute  of  frauds  and  the  statute  relating  to  trusts,  while  mak- 
ing void  parol  agreements  respecting  land,  do  not  make  void  an 
estate  which  results  from,  or  is  created  by,  operation  of  law.  This 
evidence  is  admitted  to  show  the  facts  of  the  case,  which  render 
the  deed  defeasible.^ 

297.  Kentucky.  —  Parol  evidence  is  admitted  in  this  class  of 
cases  upon  the  ground  of  fraud  or  mistake.^  Especially  if  the 
transaction  be  infected  with  usury,  it  is  admissible  to  show  that 
the  real  character  of  the  transaction  is  different  from  what  it  pur- 
ports to  be.^ 

298.  In  Maine,  by  statutory  definition,  mortgages  of  real  es- 
tate include  those  made  in  the  usual  form  in  which  the  condi- 
tion is  set  forth  in  the  deed,  and  those  made  by  a  conveyance  ap- 
pearing on  its  face  to  be  absolute,  with  a  separate  instrument  of 
defeasance  executed  at  the  same  time,  or  as  part  of  the  same  trans- 
action.* 

Parol  evidence  is  not  admissible  at  law  to  convert  an  absolute 
deed  into  a  mortgage.^  But  in  equity  a  resulting  trust  has  been 
held  to  arise  in  favor  of  a  grantor  who  has  conveyed  land  by  an 
absolute  deed  to  secure  a  debt  due  to  the  grantee,  under  which  re- 
demption may  be  had  within  a  reasonable  time.^ 

299.  Maryland.  —  Parol  evidence  is  admitted  only  to  show 
that  the  defeasance  was  omitted  or  destroyed  by  fraud  or  mis- 
take."    The   fraud   may  be   inferred  from  the  facts  and  circum- 

1  Moore  v.  Wade,  8  Kans.  380.  v.  Higgins,  32  Me.  34  ;  Thomaston  Bank 

2  Skiuner  v.  Miller,  5  Litt.  (Ky.)  86  ;     v.  Stimpson,  21  Me.  195. 

Blanchard  v.  Kenton,  4  Bibb  (Ky.),  451.  6  Richardson  v.  Woodbury,  43  Me.  206  ; 

3  Murphy  v.  Trigg,  1   Mon.  (Ky.)  72;  and    see   Howe   v.  Russell,  36   Me.   115; 
Lindley   v.    Sharp,   7    lb.    248;    Cook   v.  Whitney  v.  Batchelder,  32  Me.  313. 
Colycr,   2    B.   Mon.    (Ky.)   71  ;    Stepp  v.  '  Bank   of   Westminster   v.    Whyte,    1 
Plieli)s,  7  Dana  (Ky.),  296.  Md.  Ch.  536  ;  S.  C.  3  lb.  508  ;  Farrell  v. 

*  Rev.  Stat.  1871,  c.  90,  §  1.  Bean,  10  Md.  217  ;  Bend  v.  Susquehanna 

5  Bryant  v.  Crosbv,  36  Me.  562  ;   Ellis     Bridge  Co.  6  H.  &  J.  (Md.)  128;  Artz  v. 

216 


AN   ABSOLUTE   DEED   A   MORTGAGE. 


[§  300. 


stances  of  the  case,  from  the  character  of  the  contract,  or  from 
the  condition  of  the  parties.^ 

300.  In  Massachusetts  parol  evidence  is  admitted  in  such 
cases  not  to  vary,  add  to,  or  contradict  the  deed,  but  to  establish 
the  fact  of  an  inherent  fault  in  the  transaction  or  its  consideration, 
whicli  affords  ground  for  avoiding  the  effect  of  the  deed  by  re- 
straining its  operation  or  defeating  it  altogether.^  This  doctrine 
is  regarded  as  a  sound  and  salutary  principle  of  equity  jurispru- 
dence, when  properly  administered,  but  it  is  declared  to  be  a 
power  to  be  exercised  with  the  utmost  caution,  and  only  when 
the  grounds  of  interference  are  fully  made  out,  so  as  to  be  clear 
from  doubt.  "  It  is  not  enough,"  says  Mr.  Justice  Wells,  "  that 
the  relation  of  borrower  and  lender,  or  debtor  and  creditor,  ex- 
isted at  the  time  the  transaction  was  entered  upon.     Negotiations, 


Grove,  21  Md.  474;  Dongherty  v.  McCol- 
gan,  6  G.  &  J.  (Md.),  275 ;  Baugher  v.  Mer- 
ryman,  32  Md.  185 ;  and  see  Price  v.  Gover, 
40  Md.  102. 

1  Thompson  v.  Banks,  2  Md.  Ch.  430  ; 
Brogden  v.  Walker,  2  H.  &  J.  (Md.)  285  ; 
Watkins  v.  Stockett,  6  lb.  435  ;  Davis  v. 
Banks,  3  Md.  Ch.  138. 

-  Campbell  v.  Dearborn,  109  Mass.  130  ; 
and  see  Newton  v.  Fay,  10  Allen  (Mass.), 
505;  Glass  v.  Hulbert,  102  Mass.  24; 
Pond  r.  Eddy,  113  Mass.  149;  McDon- 
ough  V.  Squire,  HI  Mass.  217;  McDon- 
ough  V.  O'Niel,  113  Mass.  92. 

Prior  to  the  statute  of  1855,  c.  194,  §  1, 
Gen.  Stat.  c.  113,  §  2,  conferring  upon 
the  Supreme  Judicial  Court  jurisdiction  in 
equity,  "  in  all  cases  of  fraud,  and  of  con- 
veyances or  transfers  of  real  estate  in  the 
nature  of  mortgages,"  the  jurisdiction  of 
the  court  in  relation  to  the  foreclosure  and 
redemption  of  mortgages  was  confined  to 
cases  of  a  defeasance  contained  in  the  deed 
or  in  some  other  instrument  under  seal. 
Eaton  v*.  Green,  22  Pick.  526;  Flagg  v. 
Mann,  14  Pick.  467,  478  ;  Lincoln  v.  Par- 
sons, 1  Allen,  388;  Coffin  v.  Loring,  9 
Allen,  154;  Flint  v.  Sheldon,  13  Mass. 
443  ;  Stackpole /%;.  Arnold,  1 1  Mass.  27  ; 
Kelleran  v.  Brylvn,  4  Mass.  445  ;  Boyd  v. 
Stone,  1 1  Mass.  342  ;  Bodwell  v.  Webster, 


13  Pick.  413;  Saunders  v.  Frost,  5  Pick. 
259. 

But  before  that  statute  parol  evidence 
had  been  frequently  admitted  where  there 
was  a  deed  and  a  provision  for  a  reconvey- 
ance, to  show  the  real  nature  of  the  trans- 
action ;  and  had  construed  the  instruments 
as  constituting  a  mortgage  when  it  was 
shown  that  the  transaction  was  really  and 
essentially  a  loan  of  money.  Flagg  v. 
Mann,  14  Pick.  467,478;  Rice  t-.  Rice,  4 
Pick.  349  ;  Parks  v.  Hall,  2  Pick.  206,  211 ; 
Carey  v.  Rawson,  8  Mass.  159  ;  Taylor  v. 
Weld,  5  Mass.  109  ;  Killeran  v.  Brown, 
4  Mass.  443 ;  Erskine  v.  Townsend,  2 
Mass.  493. 

But  the  question,  whether  in  the  absence 
of  any  written  defeasance  an  absolute  deed 
could  be  converted  into  a  mortgage,  or  re- 
stricted in  its  operation  so  as  to  allow  a 
redemption,  when  shown  to  be  in  fact 
merely  security  for  a  loan,  was  not  decided 
until  it  came  before  the  court  in  Campbell 
V.  Dearborn,  supra,  though  the  question 
had  been  discussed  in  Newton  v.  Fay,  10 
Allen,  505,  and,  sq.  far  as  concerned  the 
statute  of  frauds,  in  Glass  v.  Hulbert,  102 
Mass.  24.  The  opinion  of  Mr.  Justice 
Wells,  in  Campbell  v.  Dearborn,  contains 
a  full  and  able  discussion  of  the  whole  sub- 
ject. 

217 


§  301.]  PAROL  EVIDENCE  TO  PROVE 

begun  with  a  view  to  a  loan  or  security  for  a  debt,  may  fairly 
terminate  in  a  sale  of  the  property  originally  proposed  for  security. 
And  if,  without  fraud,  oppression,  or  unfair  advantage  taken,  a 
sale  is  the  real  result,  and  not  a  form  adopted  as  a  cover  or  pre- 
text, it  should  be  sustained  by  the  court.  It  is  to  the  determina- 
tion of  this  question  that  the  parol  evidence  is  mainly  directed."  ^ 
Dissent  is  expressed  in  the  opinion  of  the  court  already  quoted 
from  the  doctrine  advanced  in  some  of  the  cases,  that  the  subse- 
quent attempt  to  retain  the  property,  and  refusal  to  permit  it  to 
be  redeemed,  constitute  a  fraud  and  breach  of  trust,  which  affords 
gi'ound  of  jurisdiction  and  judicial  interference.  "There  can  be 
no  fraud,  or  legal  wrong,  in  the  breach  of  a  trust  from  which  the 
statute  withholds  the  right  of  judicial  recognition.  Such  conduct 
may  sometimes  appear  to  relate  back  and  give  character  to  the 
original  transaction,  by  showing,  in  that,  an  express  intent  to  de- 
ceive and  defraud.  But  ordinarily  it  will  not  be  connected  with 
the  original  transaction  otherwise  than  constructively,  or  as  in- 
volved in  it  as  its  legitimate  consequence  and  natural  fruit."  ^ 
The  fault  is  in  the  original  transaction,  rather  than  in  the  gran- 
tee's subsequent  conduct  in  relation  to  it.  As  between  borrower 
and  lender,  or  debtor  and  creditor,  an  absolute  deed  given  as 
security,  and  a  renunciation  of  all  legal  right  of  redemption,  are 
regarded  as  so  significant  of  oppression,  and  so  calculated  to  invite 
to  or  result  in  wrong  and  injustice  on  the  part  of  the  stronger 
towards  the  weaker  party  in  the  transaction,  as  in  themselves  to 
constitute  a  quasi  fraud  against  which  equity  ought  to  relieve,  —  in 
the  same  way  that  it  does  against  the  strict  letter  of  an  express 
condition  of  forfeiBure.^ 

301.  Michigan.  —  Parol  evidence  is  admissible  to  convert  an 
absolute  deed  into  a  mortgage.'*  It  is  admitted  to  show  the  in- 
tention of  the  parties  in  the  transaction,  but  whether  as  an  excep- 
tion under  the  statute  of  frauds,  or  upon  the  ground  of  fraud,  the 
court  in  one  case  expressl}^  leave  undetermined  ;  ^  but  in  another 
it  is  said,  that  neither  the  statute  of  frauds,  nor  the  statute  re- 
quiring powers  and  trusts  to  be  created  in  writing,  is  encroached 

1  In  Campbell  v.  Dearborn,  supra,  143.  *  Swetland  v.  Swetland,  3  Mich.  482; 

2  lb.  140.  Wailsworth  v.  Loranger,  Har.  (Mich.)  Ch. 
8  Per  Wells,  J.,  in  Hassam  v.  Barrett,     113  ;  Emerson  v.  Atwater,  7  Mich.  12. 

115  Mass.  256.  6  Fuller  v.  Parrisb,  3  Mich.  211. 

218 


AN   ABSOLUTE   DEED    A   MORTGAGE.  [§§  302-304. 

upon  by  a  court  of  equity  in  exercising  its  jurisdiction  in  this 
class  of  cases  ;  that  a  different  construction  would  make  them 
what  they  were  never  intended  to  be,  a  shield  for  the  protection 
of  oppression  and  fraud ;  that  the  court  will  interfere  between 
creditor  and  debtor  to  prevent  oppression  ;  and  that  to  give  relief 
in  such  cases  has  ever  been  the  province  of  courts  of  equity,  whose 
chief  excellence  consists  in  a  wise  and  judicious  exercise  of  this 
part  of  their  jurisdiction.^ 

302.  Minnesota.  —  Parol  evidence  is  admissible  in  equity  of 
the  circumstances  under  which  the  deed  was  made,  and  the  re- 
lation subsisting  between  the  parties.^  At  first  it  was  held  to  be 
admissible  only  upon  the  ground  of  fraud,  mistake,  or  surprise  in' 
making  or  executing  the  instrument ;  but,  subsequently,  it  was 
held  to  be  admissible  to  show  the  real  character  of  the  transaction. 
In  a  court  of  law,  such  evidence  cannot  be  received  on  any 
ground.^ 

303.  In  Mississippi  it  is  well  settled  that  parol  evidence  will 
be  admitted  in  equity,  to  show  that  an  absolute  deed  was  in- 
tended to  be  a  security  for  money,  and  therefore  a  mortgage."^  It 
is  received  to  explain  the  true  character  of  the  transaction.  For 
this  purpose,  the  conduct  of  the  parties  at  the  time  and  subse- 
quently, and  all  the  attending  circumstances,  may  be  looked  at ; 
and  when  it  is  shown  that  the  consideration  of  the  conveyance 
was  a  loan  or  a  debt,  the  courts  always  incline  to  regard  it  as  a 
mortgage.^ 

304.  Missouri.  —  A  conveyance  intended  as  a  security,  though 
absolute  in  form,  is  treated  as  a  mortgage.  Such  intention  may  be 
shown  by  parol  evidence,  on  the  ground  that  the  denial  of  the  trust 
character  of  the  deed  by  the  grantee  is  a  fraud  on  his  part,  which 
gives  a  court  of  equity  jurisdiction  of  the  case,  and  thus  enables  it 

*  Emerson  v.  Atwater,  supra.  329,   and  cases  cited  ;    Vasser  v.  Vasser, 
2  Weide  i\  Gehl,  21  Minn.  449  ;  Phoe-     23  Miss.  378;  Sogjiins  v.  Heard,  31   Miss. 

nix  V.  Gardner,  13  Minn.  430.  42G  ;    Andinp   i-.    Davis,    38   Miss.   .594  ; 

8  McClane   i7yA\''hite,     5   Minn.    178;  Weathersly  r.  Weathersly,  40  Miss.  469; 

keeping  within-^he  statute  of  frauds.     Be-  Prewett  v.  Dobbs,  13  Sm.  &  M.    (Miss.) 

lote  V.  Morrison,  8  Minn.  87.  440  ;  Watson  v.  Dickens,  12  lb.  608. 

*  Littlewort  v.  Davis,  50  Miss.  403,  and  ^  Freeman  v.  Wilson,  sitpra. 
cases  cited ;  Freeman  v.  Wilson,  51  Miss. 

219 


§§  305-307.]  PAROL   EVIDENCE   TO   PROVE 

to  hold  to  the  verbal  or  implied  defeasance  as  effectually  as  if  this 
had  been  a  formal  written  one.^     It  is  not  admissible  at  law.^ 

305.  In  Nebraska  a  formal  conveyance  may  be  shown  to  be  a 
mortgage  by  extrinsic  evidence.  "  This  rule  seems  to  be  founded 
on  the  principle,  that  in  such  case  the  proof  raises  an  equity, 
which  does  not  contradict  the  writing  or  affect  its  validity,  but 
simply  varies  its  import  so  far  as  to  show  the  true  intention  and 
object  of  the  parties  without  a  written  defeasance,  and  establish 
the  trust  purpose  for  which  the  deed  was  executed.  But  to  thus 
vary  the  legal  import  of  such  absolute  deed,  and  especially  when 
fraud,  accident,  mistake,  or  surprise  is  not  alleged,  the  evidence 

'  in  reference  to  the  understanding  and  intention  of  the  parties,  at 
the  time  of  the  execution  of  the  writing,  must  be  clear,  certain, 
and  conclusive,  before  a  court  of  chancery  will  determine  such 
writing  to  be  a  mortgage  security  only."  ^ 

306.  In  Nevada  a  conveyance  absolute  upon  its  face  may  be 
shown  by  parol  to  be  a  mortgage.  It  is  not  received  to  contra- 
dict the  deed  but  to  prove  an  equity  superior  to  it.*  The  proof 
on  the  part  of  the  plaintiff  must  be  clear,  satisfactory,  and  convinc- 
ing. The  presumption  is  in  favor  of  the  natural  effect  of  the  in- 
strument. The  evidence  to  overcome  such  presumption  should 
be  so  cogent,  weighty,  and  convincing  as  to  leave  no  doubt  upon 
the  mind.^ 

307.  In  New  Hampshire  it  is  provided  by  statute  that  no 
conveyance  in  writing  of  any  lands  shall  be  defeated,  nor  any 
estate  incumbered  by  any  agreement,  unless  it  is  inserted  in  the 
condition  of  the  conveyance,  and  made  part  thereof,  stating  the 
sum  of  money  to  be  secured,  or  other  thing  to  be  performed.^ 
But  a  proviso  that  if  the  grantor  comply  with  the  conditions  of  a 

1  O'Neill  V.  Capelle,  62  Mo.  202  ;  and  see  Wilson  v.  Kicliaids,  1  Neb.  342;  De- 
see    Slowey  V.  McMurray,  27  Mo.    116;     roin  v.  Jennings,  4  Neb.  97. 

Tibeau  r.  Tibeaii,  22   Mo.  77;  Hogel  v.         *  Cookes   v.   Culbertson,   9    Nev.    199; 

Lindell,  10  Mo.  48.3;  Johnson  v.  Huston,  Saunders  v.  Stewart,  7  Nev.  200  ;  Carlyon 

17  Mo.  58;  Wilson  v.  Drumrite,  21  Mo.  v.  Lannaii,  4  Nev.  159. 
325.  5  Bingham  v.  Thompson,  4  Nev.  224. 

2  Ilogel  V.  Lindell,  10  Mo.  483.  c  Gen.  Stat.  :   Stat.  1867,  c.  122,  §  2  ; 
8  Schade  v.  Be-ssinger,  3  Neb.  140,  and  Stat.  July  3,  1829;  Boody  v.  Davis,  20  N. 

H.  140. 
220 


AN   ABSOLUTE   DEED   A   MORTGAGE.  [§  308. 

bond  executed  by  him  to  the  grantee  at  the  same  time,  the  deed 
shall  be  void,  sufficiently  sets  forth  the  thing  to  be  done.^ 

Under  this  statute  a  parol  agreement  entered  into  between  the 
grantor  and  grantee  at  the  time  of  the  delivery  of  the  deed  that 
the  grantee  should  give  a  bond  to  reconvey,  even  after  a  bond  is 
subsequently  given  in  pursuance  of  such  agreement,  does  not  make 
the  conveyance  a  mortgage.^  Even  a  bond  executed  at  the  same 
time  with  the  conveyance,  providing  that  the  conveyance  shall  be 
void  upon  pa^'uient  of  a  certain  sum  of  money,  does  not  consti- 
tute a  mortgage.  The  defeasance  must  be  inserted  in  the  deed 
itself  ;  and  a  deed  without  such  defeasance  confers  an  absolute 
title  upon  the  grantee. ^ 

308.  In  New  Jersey.  —  The  efficacy  of  the  parol  evidence  is 
not  to  establisn  an  agreement  to  reconvej',  the  specific  perform- 
ance of  which  a  court  of  equity  will  enforce,  but  to  establish  the 
true  nature  and  effect  of  the  instrument  by  showing  the  object  for 
which  it  was  made.  It  is  well  settled  that  this  may  be  done.* 
The  question  in  every  case  is,  whether  the  transaction  v^as  a  sale 
and  conveyance,  coupled  with  an  agreement  for  a  reconveyance,  or 
whether  it  was  a  security  for  a  loan.  "Any  means  of  proof  may 
be  used  to  show  it  to  be  the  latter :  the  declarations  of  the  par- 
ties ;  the  relations  subsisting  between  them  ;  the  possession  of  the 
premises  retained  by  the  complainant ;  the  value  of  the  property, 
compared  with  the  money  paid  ;  the  understanding  that  the  sums 
advanced  should  be  repaid  ;  and  the  payment  of  interest  mean- 
while on  the  amount.  The  distinction  between  parol  evidence 
to  vary  a  written  instrument,  and  parol  evidence  showing  facts 
which  control  its  operation,  is  employed  to  reconcile  the  allowance 
of  such  proofs  wdth  the  statute  of  frauds,  and  the  general  rule  of 
common  law.  Deeds  absolute  on  their  face  have  been  frequently 
decreed  to  be  mortgages  by  this  court,  and  the  grantors  allowed 
to  redeem."  ^ 

1  Bassett  v.  Bassett,  10  N.  H.  64.  Crane   v    BonneH,    1    Green   (N.  J.)  Ch. 

-  Porter  v.  Nelson,  4  N.  H.  130;  Clark  264  ;  Yoiile  v.  Richards,  Sax.  (N.  J.)  Ch. 

V.  Hobbs,  11  N.  H.  122;  Boody  v.  Davis,  534  ;  Lokerson  i^.  Stilhvell,  13   N.  J.   Eq. 

20  N.   H.   UO;  Runlet  v.  Otis,  2  N.  H.  358;  Condit  i;.  Tichenor,  19  N.  J.  Eq.  43  ; 

167  ;  Luifdi'.  Lund,  1  N.  H.  39.  Vandegrift  v.  Herbert,  18  N.  J.  Eq.  466. 

8  Tifft  V.  Walker,  10  N.  H.  150.  6  pgr  Vice  Chancellor  Dodd,  in  Sweet 

*  Sweet  V.  Parker,  22   N.   J.  Eq.  453,  v.  Parker,  su])ra ;  and  see  Phillips  v.  Hul- 

457  ;  Crane  v.  Decamp,  21  N.  J.  Eq.  414  ;  sizer,  5  C.  E.  Green,  308. 

221 


§  309.]  PAROL  EVIDENCE   TO    PROVE 

309.  New  York.  —  Such  evidence  was  admitted  in  some  of 
the  earlier  cases  solely  upon  the  ground  of  fraud  or  mistake.^  But 
Chancellor  Kent  apparently  thought  the  only  fraud  necessary  to 
be  shown  to  be  the  fraud  on  the  part  of  the  grantee  in  attempting 
to  convert  a  mortgage  into  an  absolute  sale  ;  ^  and  it  is  distinctly 
asserted  in  other  cases  that  it  is  not  necessary  to  prove  that  the 
deed  was  given  in  this  form  through  fraud  or  mistake.^  This  evi- 
dence is  admitted  in  all  cases  without  reference  to  the  reason  why 
a  written  defeasance  was  omitted,  or  why  the  grantee  denies  the 
redeemable  character  of  the  conveyance.  It  is  admitted  to  show 
what  the  transaction  really  was. 

"  It  is  now  too  late,"  says  Mr.  Justice  Allen,  in  a  recent  case,* 
"  to  controvert  the  proposition  that  a  deed,  absolute  upon  its  face, 
may  in  equity  be  shown,  by  parol  or  other  extrinsic  evidence,  to 
have  been  intended  as  a  mortgage  ;  and  fraud  or  mistake  in  the 
preparation,  or  as  to  the  form  of  the  instrument,  is  not  an  essen- 
tial element  in  an  action  for  relief,  and  to  give  effect  to  the  inten- 
tion of  the  parties.  The  courts  of  this  state  are  fully  committed 
to  the  doctrine  ;  and  whatever  may  be  the  rule  in  other  states, 
here,  in  passing  upon  the  question,  we  have  only  to  stand  upon 
the  safe  maxim  of  stare  decisis.  It  is  not  enough,  in  view  of  the 
fact  that  the  adjudications  have  entered  into  and  controlled  busi- 
ness transactions  and  become  a  rule  of  property,  to  authorize  a 

1  Patchin  v.  Pierce,  12  Wend.  (N.  Y.)  gestion  made  that  any  such  allegation  or 
61;  Swart  i\  Service,  21  Wend.  (N.  Y.)  proof  was  necessary  to  justify  the  court  in 
36;  Stevens  v.  Cooper,  1  Johns.   (N.  Y.)     admitting  the  parol  evidence." 

Ch.  425;  Strong  v.  Stewart,  4  lb.   167;  *  Horn  iJ.  Keteltas,  46  N.  Y.  605,609. 

Marks  v.  Pell,  1  lb.  594  ;  Taylor  v.  Bald-  And  see   Moses  v.  Murgatroyd,  1   Johns, 

win,  10  Barb.  (N.  Y.)  582  ;   Webb  v.  Rice,  (N.  Y.)  Ch.  119  ;  Marks  v.  Pell,  lb.  599  ; 

6  Hill  (N.  Y.),  219.     In  the  latter  case  it  Clark  v.  Henry,  2  Cow.  332;  Whittick  v. 

was  held  that  such  evidence  is  inadmissi-  Kane,  1  Paige,  206;  Van  Buren  v.Olra- 

ble  at  law,  and  earlier  cases  at  law  in  which  stead,  5  Paige,   10;  Mclntyre  v.  Humph- 

it  had  been  admitted  were  overruled.  reys,    1    Hoff.    34;  Hodges   v.    Tennessee 

2  Strong  D.  Stewart,  4  Johns.  (N.  Y.)  Marine  &F.  Ins.  Co.  8  N.  Y.  416  ;  De.spard 
Ch.  167.  V.  Walbridge,  15  N.   Y.  374;  Sturtevant 

3  Brown  v.  Clifford,  7  Lans.  (N.  Y.)  y.  Sturtevant,  20  N.  Y.  39;  Van  Dusen  r. 
46,  per  Mr.  Justice  Mullin :  "  I  have  Worrell,  4  Abb.  App.  Dec.  473 ;  Stod- 
said  that  parol  .evidence  was  admissible,  dard  z;.  Whiting,  46  N.  Y.  627;  Carr  v. 
although  no  fraud  or  mistake  in  making  Carr,  52  N.  Y.  251  ;  S.  C.  4  Lans.  (N.  Y.) 
the  deed  was  alleged  or  proved,  and  I  say  314  ;  Meehan  i'.  Forrester,  52  N.  Y.  277; 
this,  because  in  nearly  all  of  the  cases  Brown  v.  Clifford,  7  Lans.  (N.  Y.)  46; 
cited,  and  in  the  numerous  others  upon  Loomis  v.  Loomis,  60  Barb.  (N.  Y.)  22; 
the  same  point,  no  fraud  or  mistake  was  Fiedler  i;.  Darrin,  50  N.  Y.  437. 

either  alleged  or  proved,  nor  was  any  sug- 

222 


AN   ABSOLUTE   DEED   A   MORTGAGE. 


[§  310. 


reconsideration  of  the  questions,  that  the  rule  has  been  authori- 
tatively adjudged  otherwise  as  a  rule  of  evidence  in  common 
law  courts,  and  that  eminent  judges  have  contended  earnestly 
against  its  adoption  as  a  rule  in  courts  of  equity.  Notwithstand- 
ing their  protests,  the  rule  has  been,  upon  the  fullest  considera- 
tion, deliberately  established,  and  cannot  now  be  lightly  departed 
from."  1 


310.  North  Carolina.  —  Parol  evidence  seems  to  be  admitted 
upon  the  general  grounds  of  equity  jurisdiction  in  cases  of  fraud, 
accident,  and  mistake.^  "  In  equity,  plaintiffs  are  allowed,  by  mak- 
ing the  proper  preliminary  allegations,  —  as  that  a  certain  clause 
■was  intended  to  be  inserted  in  a  written  instrument,  but  was 
omitted  b}'  the  ignorance  or  mistake  of  the  draughtsman ;  or  by 
some  fraud  or  circumvention  of  the  opposite  party  ;  or  some  op- 
pression or  advantage  taken  of  the  plaintiff's  necessities  ;  or  when 
an  unlawful  trust  was  designedly  omitted  to  evade  the  law,  —  to 
call  for  a  discovery  on  the  oath  of  the  defendant.     If  the  fact  is 


^  The  learned  judge  refers  to  the  earlier 
cases  in  New  York,  saying:  "The  prin- 
ciple was  recognized  by  the  Chancellor  in 
Holmes  v.  Grant,  8  Paige,  243  ;  although 
it  was  not  applied  in  that  case,  and  had 
been  before  asserted  under  like  circum- 
stances in  Robinson  v.  Cropsey,  2  Edw. 
Ch.  138;  affirmed  6  Paige,  480. 

"  It  was  expressly  adjudged  in  Strong  v. 
Stewart,  4  Johns.  Ch.  167,  that  parol  evi- 
dence was  admissible,  to  show  that  a 
mortgage  onl}'  was  intended  by  an  assign- 
ment absolute  in  terms ;  and  to  the  same 
effect  is  Clark  v.  Henry,  2  Cow.  324; 
•which  was  followed  by  this  court  in  Mur- 
ray V.  Walker,  31  N.  Y.  399.  In  Hodges 
V.  Tennessee  Marine  &  Fire  Insurance 
Co.  4  Seld.  416,  the  court  says,  that, 
'  from  an  early  day  in  this  state  the  rule 
that  parol  evidence  is  admissible  for  the 
purpose  named,  has  been  established  as 
the  law  op<Jur  courts  of  equity,  and  it  is 
not  fitting  that  the  question  should  b  re- 
examined, and  the  cases  in  which  it  has 
been  so  adjudged  are  cited  with  approval.' 

"  In  Stiirtevant  v.  Sturtevant,  20  N.  Y. 
39,  the  same  judge  pronouncing  tha  opin- 


ion as  in  the  case  last  cited,  distinguishes 
between  the  case  of  a  mortgage  and  trust, 
and  it  was  decided,  that  while  a  deed  ab- 
solute in  terms  could  be  shown  to  be  a 
mortgage,  a  trust  in  favor  of  the  grantee 
could  not  be  established  by  parol.  And 
see  Despard  v.  Walbridge,  15  N.  Y.  374. 
The  rule  does  not  conflict  with  that  other 
rule,  which  forbids  that  a  deed  or  other 
written  instrument  shall  be  contradicted 
or  varied  by  parol  evidence.  The  instru- 
ment is  equally  valid,  whether  intended  as 
an  absolute  conveyance  or  a  mortgage.  Ef- 
fect is  only  given  to  it  according  to  the  in- 
tent of  the  parties,  and  courts  of  e()uity  will 
always  look  through  the  forms  of  a  trans- 
action and  give  effect  to  it,  so  as  to  carry 
out  the  substantial  intent  of  the  parties." 
Horn  I'.  Keteltas,  46  N.  Y.  605,  610. 

2  McDonald  v.  McLeod,  1  Led.  (N.  C.) 
Eq.  221  ;  Steel  v.  Black,  3  Jones  (N.  C.) 
Eq.  427  ;  Cook  v.  Gudger,  2  lb.  172  ;  Glis- 
son  V.  Hill,  2  lb.  256;  Sellers  v.  Stalcup, 
7  Led.  (N.  C.)  Eq.  13;  Elliott  v.  Max- 
well, 7  lb.  246  ;  Blackwell  v.  Overby,  6  lb. 
38  ;  Kelly  v.  Bryan,  6  lb.  283  ;  McLauri 
V.  Wright,  2  lb.  94. 

223 


§  311.]  PAROL   EVIDENCE   TO   PROVE 

confessed,  the  plaintiff  can  have  relief.  If  it  be  denied,  although 
it  was  for  a  long  time  questioned,  it  is  now  settled  that,  provided 
the  matter  can  be  established,  not  merely  by  the  declarations  of 
the  parties  or  the  unaided  memory  of  the  witnesses,  but  by  facts 
and  circumstances  dehors  the  instrument,  such  as  are  more  tangi- 
ble and  less  liable  to  be  mistaken  than  mere  words,  equity  will 
give  relief,  by  considering  the  clause  thus  shown  to  have  been 
omitted  as  if  it  had  been  set  out  in  the  instrument."  ^  Thus, 
where  there  was  the  preliminary  allegation  of  oppression  to  ac- 
count for  the  omission  of  the  defeasance,  and  it  was  shown  that 
the  plaintiff  was  hard  pressed  for  money,  and  was  forced  to  con- 
sent to  the  omission  of  this  clause  ;  and  it  was  further  shown  that 
there  was  great  inadequacy  of  price,  and  that  the  plaintiff  re- 
tained possession  and  paid  interest,  he  was  allowed  to  redeem. ^ 
The  grantor  having  executed  a  deed,  knowing  it  to  be  absolute, 
must  be  deemed  to  have  intended  it  to  be  so,  unless  there  is  strong 
and  clear  proof  of  mistake  or  imposition.^  Parol  evidence  of  ad- 
missions on  the  part  of  the  grantee  that  the  deed  was  intended  as 
a  mere  security  are  not  alone  sufficient.  There  must  also  be 
shown  facts  or  circumstances  inconsistent  with  the  idea  of  an  ab- 
solute conveyance,  and  proof  of  fraud,  oppression,  ignorance,  or 
mistake,  so  as  to  account  for  the  conveyance  being  absolute  on  its 
face,  when  such  was  not  the  intention.* 

311.  Ohio.  —  Parol  evidence  is  admitted  to  show  whether  an 
absolute  deed  be  a  mortgage  or  not.  If  given  as  a  security  it  is  a 
mortgage,  whatever  its  form ;  and  the  fact  of  its  being  so  given, 
and  not  the  evidence  of  the  fact,  determines  its  character.  In 
such  case  a  trust  arises  in  favor  of  the  grantor.  Being  a  tacit 
trust,  it  is  more  difficult  to  establish  than  one  that  is  expressed, 
but  when  it  is  ascertained,  the  same  consequences  attach  to  it. 
The  evidence  for  this  purpose  must  be  clear,  certain,  and  conclu- 
sive.^ 


1  Kelly  V.  Bryan,  supra,  per   Pearson,  Eq.  209;  Cook  v.  Gudger,  lb.   172  ;  Glis- 
J.  son  V.  Hill,  lb.  256. 

2  Streator  v.  Jones,  3  Hawks   (N.  C),  ^  Miami  Ex.  Co.u.  U.  S.  Bank,  Wright 
423;  1  Murph.  449.  (Ohio),  249,  252;    Cotterell  v.  Long,  20 

8  Elliott  ?;.  Maxwell,  7  Ired.  (N.  C.)  Eq.  Ohio,  464;  and  see  Miller  v.   Stokely,  5 

246.  Oliio  St.  194  ;  Stall  v.  City  of  Cincinnati, 

*  Brothers  v.  Harrlll,  2  Jones   (N.  C.)  16  lb.  169. 

224 


AN   ABSOLUTE   DEED    A   MORTGAGE.  [§  312. 

312.  Pennsylvania.  —  The  courts  of  this  state  have  no  general 
equity  jurisdiction.  IMortgages  are  dealt  with  as  matters  of  strict 
law ;  and  yet  parol  evidence,  under  restrictions  as  to  its  suffi- 
ciency, is  admitted  to  show  that  an  absolute  conveyance  is  in  fact 
a  mortgage.^  "  In  strict  law,"  says  Chief  Justice  Lowrie,  "  no 
mortgage  is  allowed  that  is  not  proved  by  written  evidence,  and 
the  judge  may  not  admit  any  lower  evidence  on  equitable  grounds 
without  seeing  that  justice  imperiously  demands  it.  The  case  of 
a  lost  instrument  is  a  useful  analogy.  If,  in  such  a  case,  the  judge 
refuses  to  hear  secondary  evidence  until  he  is  perfectly  satisfied 
that  the  justice  of  the  case  cannot  be  otherwise  administered, 
much  more,  it  would  seem,  ought  this  to  be  so  where  the  evidence 
which  the  law  makes,  not  merely  primary  but  essential,  never  had 
any  existence."  ^  Therefore,  it  is  held  that  mere  evidence  of  ver- 
bal declarations  by  the  parties,  unless  corroborated  by  other  facts 
and  circumstances,  is  not  a  proper  substitute  for  the  written  evi- 
dence required  by  law.^  The  presumption  always  is  that  the 
deed  is  what  it  purports  to  be.  To  prove  it  otherwise,  the  evi- 
dence must  be  clear  and  convincing.  If  the  intention  of  the  par- 
ties be  to  create  a  mortgage  rather  than  a  conveyance,  this  must 
be  established,  not  merely  by  loose  conversations  between  the 
parties,  or  by  declarations  to  third  persons,  but  by  facts  and  cir- 
cumstances outside  the  deed,  inconsistent  with  the  idea  of  an  ab- 
solute purchase."^  The  principle  upon  which  parol  evidence  is  ad- 
mitted is  to  show  and  explain  the  true  intention  and  purpose  of 

1  Odenbaugh  v.  Bradford,  67  Pa.  St.  "Equitable  principles  are  continually 
96  ;  Kenton  u.  Vandergrift,  42  Pa.  St.  insinuating  themselves  into  the  system  of 
339;  Keilum  v.  Smith,  33  Pa.  St.  158;  the  law.  Our  law  abounds  with  principles 
Todd  V.  Campbell,  32  Pa.  St.  250  ;  Kun-  that  were  formerly  purely  equitable.  And 
kle  V.  Wolfersberger,  6  Watts  (Pa.),  130  ;  the  process  by  which  this  takes  place  is 
Kerr  v.  Gilmore,  6  lb.  405,  414  ;  Kelly  v.  perfectly  natural ;  for,  in  the  progress  of 
Thompson,  7  lb.  401 ;  Jaques  v.  Weeks,  7  society,  and  in  the  natural  changes  of  its 
lb  268;  Friedley  v.  Hamilton,  17  S.  «&.  R.  customs,  exceptional  principles  are  con- 
(Pa.)  70 ;  Manufacturers'  &  Mechanics'  stantly  demanding  recognition,  and  con- 
Bank  V.  Bank  of  Penn.  7  AV.  &  S.  (Pa.)  tinually  enlarging  their  sphere,  until  they 
335  ;  Cole  v.  Bolard,  22  Pa.  St.  431 ;  become  general,  and  thus  truly  legal.  In 
Houser  v.,j35unont,  55  Pa.  St.  311  ;  Guth-  this  way  the  social  system  keeps  pace  with 
rie  V.  Kahle,  46  Pa.  St.  331  ;  Harper's  Ap-  the  changes  of  social  purposes  and  prin- 
peal,  64  lb.  315;  7  Phila.  276;  llhines  v.  ciples,  and  never  requires  any  violent  dis- 
Baird,41  lb.  256 ;  McClurkan  t-.  Thomp-  ruption."  Per  Lowrie,  C.  J. 
son,  69  lb.  305  ;  Fessler's  Appeal,  75  lb.  3  Todd  v.  Campbell,  32  Pa.  St.  250;  De 
483.  France  r.  De  France,  supra. 

-  De  France  v.  De  France,  34  Pa.  St.  *  Todd  v.  Campbell,  supra,  per  Strong, 

385.  J. 

VOL.  I.                               15  225 


§§  313-315.]  PAROL   EVIDENCE   TO   PROVE 

the  parties,  in  order  to  develop  the  real  character  of  the  transac- 
tion.^  Whether  the  transaction  is  to  be  regarded  as  an  absolute 
conveyance  or  a  mortgage  depends  more  upon  its  attendant  cir- 
cumstances than  upon  any  express  agreement  making  it  defeasi- 
ble ;  and  it  is  doubtful  whether  parol  proof  of  an  agreement  to 
reconvey  standing  alone,  and  without  fraud,  would  be  permitted 
to  convert  it  into  a  mortgage.  But  facts  and  circumstances  in- 
consistent with  its  being  an  absolute  conveyance  may  be  proved  ; 
and  if  they  are  clear  and  convincing  enough  to  authorize  a  court 
of  equity  to  infer  that  the  conveyance  was  intended  to  secure  a 
loan,  under  the  jurisprudence  of  this  state  they  should  be  sub- 
mitted to  a  jury  to  find  whether  the  transaction  was  a  mortgage.^ 
The  proof  must  establish  an  agreement  for  a  reconveyance  sub- 
stantially contemporaneous  with  the  execution  and  deliver}^  of  the 
deed,  and  not  rest  on  the  subsequent  admissions  and  declarations 
of  the  mortgagee  only.  The  agreement  need  not,  however,  be  ex- 
press ;  it  may  be  inferred  from  circumstances.^ 

313.  Rhode  Island.  —  Parol  evidence  is  admissible  to  show  that 
an  absolute  deed  was  intended  as  a  mortgage,  and  that  the  de- 
feasance has  been  omitted  or  destroyed  b}^  fraud  or  mistake,  or 
omitted  by  design,  upon  mutual  confidence  between  the  parties.* 

314.  South  Carolina.  —  Parol  evidence  is  received  to  convert 
an  instrumtnt  absolute  on  its  face  into  a  defeasible  instrument, 
where  the  omission  to  reduce  the  defeasance  to  writing  was  oc- 
casioned by  fraud  or  mistake. °  If  it  can  be  received  in  any  other 
case  the  evidence  must  be  very  clear  and  convincing.^ 

315.  Tennessee.  —  It  is  well  settled  that  although  a  conveyance 
be  absolute  in  its  terms,  it  may  be  shown  by  parol  proof  to  be  a 
mortgage.     It  seems  to  be  admitted  for  the  purpose  of  showing 

1  Kerr  v.  Gilmore,  6  Watts   (Pa.),  405,  the  manner  in  which  a  written  instrument 

414.  may  be  changed  by  parol,  but  also  defeat 

-  Hhines   v.   Baird,    41    Pa.    St.    256;  the  wise  provision  of  the  statute  of  frauds." 

McClurkan    v.   Thompson,    69  lb.    305  ;  Per  Mercur,  J. 

Plumer  t>.  Guthrie,  76  lb.  441;  Baisch  v.  *  Taylor  ?>.  Luther,  2  Sumn.  228;  Nich- 

Oakeley,  68  lb.  92.  ols  v.  Reynolds,  1  R.  I.  30. 

8  Palmer  v.  Guthrie,  supra.  ^  Arnold  v.   Mattison,  3  Rich.  (S.  C.) 

"  Le-s  than  this  would  not  only  conflict  Eq.  153. 

with  tlic  rules  of  evidence  which  prescribe  ''  Arnold  v.  Mattison,  supra. 

226 


AN   ABSOLUTE   DEED   A   MORTGAGE.  [§  316. 

the  intention  of  the  parties  and  the  real  character  of  the  transac- 
tion.^  When  a  parol  defeasance  is  shown,  the  effect  of  it  is  to 
reduce  the  title  under  an  absolute  deed  to  what  was  intended  by 
the  parties,  a  defeasible  estate ;  a  security  for  a  debt,  instead  of 
a  sale.2  The  evidence,  however,  must  be  clear  and  decisive,  as 
the  presumption  is  in  favor  of  the  deed  as  it  appears  upon  its 
face.^ 

316.  Texas.  —  The  doctrine  that  parol  evidence  is  admissible 
to  prove  that  an  absolute  deed  was  intended  merely  as  a  security 
for  the  payment  of  a  debt  is  fully  recognized.*  It  is  admitted  to 
show  that  the  deed  was  really  executed  and  delivered  upon  cer- 
tain trusts,  not  reduced  to  writing,  which  the  grantee  promised  to 
perform.  These  trusts  existing  in  parol  are  established  to  pre- 
vent the  fraudulent  use  of  the  deed  or  written  instrument.^  It  is 
not  necessary  that  there  should  be  any  charge  of  fraud,  mistake, 
or  surprise,  to  afford  a  foundation  for  the  introduction  of  such 
evidence.^  When  it  is  attempted  to  use  the  deed  for  a  fraudulent 
purpose,  or  one  wholly  different  from  that  intended  by  the  par- 
ties, equity  interposes  to  prevent  the  fraud  and  establish  the 
.trust.  The  trust  must  be  shown  with  clearness  and  certainty, 
and  it  has  sometimes  been  said  that  it  must  be  shown  by  the  tes- 
timony of  more  than  one  witness,  unless  that  testimony  be  sup- 
ported by  corroborating  circumstances.*^  As  in  Pennsylvania, 
there  being  no  court  of  chancery,  such  evidence  must  be  passed 
upon  by  a  jury.^ 

1  Nichols  V.  Cabe,  3  Head  (Tenn.),  93 ;  v.  Johnson,  3  Tex.  1  ;  Carter  i'.  Carter,  5 
Ruggles  V.  Williams,  1  lb.  141  ;  Hinson  v,  Tex.  93 ;  Hannay  v.  Thompson,  14  Tex. 
Partee,  71  Humph.  (Tenn.)  .581  ;  Ballard  142;  Mead  v.  Randolph,  8  Tex.  191; 
V.  Jones,  6  lb.  45.5  ;  Brown  v.  "Wright,  4  Mann  v.  Falcon,  25  Tex.  271  ;  Miller  v. 
Yerg.  (Tenn.)  57;  Lane  v.  Dickerson,  10  Thatcher,  9  Tex.  482  ;  McClenny  i-.  Floyd, 
lb.  373;  Yarbrough  v.  Newell,  10  lb.  10  Tex.  159;  Cuney  r.  Dupree,  21  Tex. 
376;    Guinn  v.   Locke,  1   Head  (Tenn.),  211;  Grooms  u.  Rust,  27  Tex.  231. 

110;  Jones  v.  Jones,  lb.  105.  s  Moreland  v.  Barnhart,  44  Tex.  275; 

2  Ruggles  V.  Williams,  supra.  Mead  i'.  Randolph,  supra ;  Grooms  v.  Rust, 
8  Haynes  v.   Swann,  6  Heisk.  (Tenn.)     supra. 

560;  Nickson  v.  Toney,  3  Head  (Tenn.),  ^  Mead  v.  Randolph,  su/)ra ;  Carter  v. 

655  ;  Hickman  v.  Quinn,  6  Yerg.  (Tenn.)  Carter,  supra. 

96  ;  Lane  v.  Dickerson,  supra  ;   Overton  "  Moreland  v.  Barnhart,  44  Tex.   275, 

f.^Bigelow,  3  Yerg.  (Tenn.)  513;  Ham-  583,  and  cases  cited. 

monds  v.  Hopkins,  lb.  525.  ^  Carter  v.  Coxier,  supra;  Moreland  v. 

*  Gibbs  V.  Penny,  43  Tex.  560;  Ruffier  Barnhart,  supra;   Ruffier  v.  Womack,  30 

i;.  Womack,  30  Tex.  332,  343 ;  Stampers  Tex.  332. 

227 


§§  317-320.]  PAROL   EVIDENCE   TO   PROVE 

317.  In  Vermont  parol  testimony  is  admissible  to  show  tliat  a 
deed  absolute  in  terms  was  in  fact  made  as  security  for  money 
loaned,  if  the  grantor  has  remained  in  possession,  and  the  title 
has  continued  in  the  grantee.  If  he  has  parted  with  the  title,  the 
grantor  loses  his  right  to  redeem. 

The  fact  that  the  grantor  remains  in  possession  is  always  re- 
garded as  a  strong  circumstance  tending  to  show  that  the  deed  is 
a  mortgage.^  The  absence  of  any  written  evidence  of  a  debt 
does  not  make  the  deed  less  effectual  as  a  mortgage.^ 

The  ground  upon  which  parol  evidence  is  admitted  seems  to  be  • 
that  when  the  instrument  is  in  fact  a  mortgage,  and  there  is  an 
attempt  to  set  it  up  as  an  absolute  conveyance,  there  is  a  fraudu- 
lent application  or  use  made  of  it  which  a  court  in  chancery  may 
interfere  with  to  prevent.^ 

318.  Virginia.  —  Parol  evidence  is  admitted  in  equity  to  deter- 
mine whether  a  deed  shall  be  considered  a  mortgage  or  an  abso- 
lute purchase.  The  court  is  governed  by  the  intention  of  the 
parties.  The  question  is  whether  the  parties  intended  to  treat  of 
a  purchase,  or  to  secure  the  repayment  of  money.  To  deter- 
mine this,  the  whole  circumstances  of  the  transaction  will  be  exr 
amined.'^ 

319.  West  Virginia.  —  The  rule  in  relation  to  the  admission 
of  parol  evidence,  to  show  that  a  deed  is  a  mortgage,  is  the  same 
that  prevails  in  Virginia.^ 

320.  In  Wisconsin  the  admissibility  of  parol  proof,  to  show  a 
deed  absolute  on  its  face  to  be  a  mortgage,  is  the  settled  law.** 

1  Hills  V.  Loomis,  42  Vt.  562  ;  Rich  v.  s  Wright  v.  Bates,  13  Vt.  348. 
Doane,  35  Vt.  125;  Wright  v.  Bates,  13  *  Ross  v.  Norvell,  1  Wash.  (Va.)    14; 
Vt.  341;    Baxter  v.  Willey,  9   Vt.  276;  Thompson  r.  Davenport,  1  lb.  125;   King 
Campbell    v.   Worthington,    6    Vt.   448;  v.  Newman,  2  Munf.  (Va.)  40 ;  Brecken- 
Wing  V.  Cooper,  37  Vt.  169  ;  Hyndman  v.  ridge  v.  Auld,  1  Rob.  ( Va.)  148 ;  Dabney 
Hyndman,  19  Vt.  9  ;  Bigelow  v.  Topliff,  25  v.  Green,  4  Hen.  &  Munf.  ( Va.)  101 ;  Chap- 
Vt.  273;  Mott  v.  Harrington,  12  Vt.  199.  man  v.  Turner,  1  Call  (Va.),  244;  Rob- 
In  Conner  v.  Chase,  15  Vt.  764,  it  was  ertson  v.  Campbell,  2  lb.  354  ;  Penning- 
held  that  such  evidence  was  inadmissible  ton  v.  Hanby,  4  Munf.  (Va.)  140;  Bird 
to  show  that  a  deed  of  warranty,  followed  v.  Wilkinson,  4  Leigh  (Va.),  266. 
by  possession  through  several  successive  ^  Kliuck  v.  Price,  4  W.  Va.  4,  9,  cit- 
grantees,  by  similar  deeds,  was   a  mort-  ing  the  above  cases  in  Virginia, 
gage.  0  Wilcox  v.  Bates,  26  Wis.  465.    "  Not- 

*  Graham  v.  Stevens,  34  Vt.  166.  withstanding  what  was  said  in  the  opinion 

228 


AN   ABSOLUTE   DEED   A   MORTGAGE.  [§  321. 

This  is  not  only  the  rule  in  equity,^  but  at  law  as  well.  The  evi- 
dence, however,  must  be  clear  and  convincing,  such  as  courts  of 
equity  require  in  such  cases,  and  equal  in  force  to  that  upon  which 
a  deed  will  be  reformed.  As  to  the  grounds  upon  which  tlie  evi- 
dence is  admitted,  "it  is  the  fraudulent  use  of  the  deed  which 
equity  interposes  to  detect  and  prevent,  and,  for  this  purpose, 
parol  proof  is  admissible,  not  to  vary  the  deed,  but  to  maintain 
the  equity  which  attaches  to  the  transaction  inherently,  and  which 
the  deed  or  contract  of  the  parties  does  not  create,  and  cannot  de- 
stroy. If  an  equity  of  redemption  really  attaches  to  the  transac- 
tion itself,  any  attempt  to  defeat  that  equity  by  setting  up  the 
deed  as  absolute  is  fraudulent."  ^ 

21.  A  review  of  the  cases,  with  reference  to  the  grounds  upon 
which  parol  evidence  is  admitted  to  prove  that  an  absolute  con- 
veyance is  a  mortgage  in  equity,  will  show  that  in  the  earliest 
cases,  both  in  England  and  America,  it  was  admitted  solely  upon 
the  ground  of  fraud,  accident,  or  mistake,  which  are  ordinary 
grounds  of  equity  jurisdiction.  In  several  states  this  is  still  de- 
clared by  the  courts  to  be  the  only  ground  upon  which  their  in- 
terference, in  such  case,  can  be  justified  ;  or,  at  any  rate,  there 
have  been  no  decisions  which  distinctly  place  such  interference 
upon  any  other  ground.  Such  seems  to  be  the  doctrine  in  Ala- 
bama, Connecticut,  Florida,  Indiana,  Kentucky,  Maryland,  North 
CaroUna,  Rhode  Island,  and  South  Carolina.^ 

In  a  few  states,  as  for  instance  Iowa,  Missouri,  Vermont,  and 
Wisconsin,  it  is  declared  that  it  is  fraud  on  the  part  of  the  grantee 

in  Rasdall  v.  Rasdall,  9  Wis.  379,  as  to  the  of  the  holder  defeated,  is  purely  an  equi- 

admissibility  of  parol  evidence  to  prove  an  table,  and  not  a  legal,  doctrine.    It  had  its 

absolute  deed  a  inortgage,  upon  principle,  origin  in  the  court  of  chancery,  in  which 

it  has  since  been  frequently  held  by  this  court  alone  the  remedy  could  formerly  be 

court  that  the  admissibility  of  such  evi-  administered.     The  rules  and  practice  of 

dence   had   been   so  long   established   by  that  court  vrere  such  as  to  afford  many 

authority  as   to    have   become   a  rule   of  safeguards  to  the  rights  of  the  grantee,  and 

property,  which  ougiit  not  to  be  changed  to  obviate  many  evils  which  must  other- 

by  the  judicial  department."     Per  Paine,  wise  have  grown  up  out  of  the  doctrine." 

J.,  and  see  Plato  i-.  Roe,  14   Wis.  453;  Per  Dixon,  C.  J. 
Sweet  V.  Mitchell,  15  Wis.  641 ;  Spencer         2  Rogan  v.  Walker,  1  Wis.  527. 
r.  Fredendall,  15  Wis.  666.  ^  See   §§   285,    300;    also   Maxwell  v. 

1  Kent  r.  Agard,  24  Wis.  378  ;  Kent  v.  Mountacute,   Prec.    Ch.  526;    Walker  v. 

Lasley,  24  Wis.  654.     "  The  doctrine  that  Walker,  2  Atk.  99  ;  Joynes  v.  Statham,  3 

a  deed  absolute  in  its  terms  can  be  thus  lb.  388 ;  Pym  v.  Blackburn,  3  Ves.  38  ; 

transformed  into  a  mortgage,  and  the  title  Townshend  v.  Stangroom,  6  Ves.  328. 

229 


§  322.]  PAROL  EVIDENCE  TO  PROVE 

to  insist  that  the  conveyance  is  absolute,  when,  in  fact,  it  was  in 
its  origin  intended  to  be  redeemable.  In  Maine,  Ohio,  and  Texas, 
the  intention  of  the  parties  to  create  a  security  only  seems  to  be 
regarded  as  raising  a  trust  in  favor  of  the  grantor  which  equity 
will  enforce. 

But  the  doctrine  in  this  country,  now  more  generally  accepted, 
is,  that  the  admission  of  parol  evidence  is  not  confined  to  cases  of 
distinct  fraud  on  the  part  of  the  grantee  in  obtaining  a  deed  with- 
out a  defeasance,  or  mistake  on  the  part  of  the  grantor  in  giving 
such  a  deed.  The  doctrine  declared  by  the  Supreme  Court  of  the 
United  States  in  Russell  v.  SoutJiard,^  and  by  the  Supreme  Court 
of  Massachusetts  in  recent  cr.ses,^  is,  that  the  mere  fact  that  an 
absolute  deed  was  intended  as  securit}^  merely  affords  ground  of 
jurisdiction  to  courts  of  equity  to  interfere  and  give  relief  ;  that  a 
security  in  this  form  is  so  calculated  to  be  an  instrument  of  op- 
pression and  wrong  as  in  itself  to  constitute  a  quasi  fraud,  which 
equity  should  relieve  against  ;  that  the  fraud,  or  fault,  is  inher- 
ent in  the  transaction  itself,  and  does  not  arise  out  of  the  subse- 
quent conduct  of  the  grantee  in  attempting  to  retain  the  property. 
This  doctrine  is  declared  with  more  or  less  distinctness  in  the  later 
decisions  of  the  courts  of  Arkansas,  California,  Illinois,  Kansas, 
Massachusetts,  Michigan,  Minnesota,  Mississippi,  Nebraska,  Ne- 
vada, New  Jersey,  New  York,  Pennsylvania,  Tennessee,  Virginia, 
and  West  Virginia. 

322.  The  statute  of  frauds  was  at  first  supposed  to  stand  in 
the  way  of  allowing  a  grant,  absolute  on  its  face,  to  be  established 
by  parol  evidence  as  a  mortgage.  But  the  courts,  after  a  struggle 
and  much  hesitation,  established  the  doctrine,  as  otherwise  it  was 
found  that  the  statute  designed  to  prevent  frauds  and  perjuries 
would  become  in  this  way  an  effectual  instrument  of  fraud  or  in- 
justice.^ Although  the  admission  of  such  evidence  is  placed  upon 
different  grounds  by  different  courts,  there  is  substantial  unanim- 
ity in  holding  that,  when  once  the  fact  is  established  that  the 
grant  was  intended  as  a  mortgage,  the  convej'^ance  will  be  so  re- 
garded. The  statute  of  frauds  does  not  interpose  any  insuperable 
obstacle  to  granting  relief  in  such  a  case,  because  relief,  if  granted, 
is   obtained  by  setting    aside    the    deed ;    and    parol  evidence  is 

1  §  285.  8  CaiT  V.  Carr,  52  N.  Y.  251. 

2  §  300. 

230 


AN    ABSOLUTE   DEED    A   MORTGAGE.  [§  323. 

availed  of  to  establish  the  equitable  grounds  for  impeaching  that 
instrument,  and  not  for  the  purpose  of  setting  up  some  other  or 
different  contract  to  be  substituted  in  its  place.  The  equities  of 
the  parties  are  adjusted  according  to  the  nature  of  the  transaction 
and  the  facts  and  circumstances  of  the  case,  including  the  real 
agreement.  It  does  not  violate  the  statute  of  frauds  to  admit 
parol  evidence  of  the  real  agreement  as  an  element  in  the  proof 
of  fraud  or  other  vice  in  the  transaction,  which  is  relied  upon  to 
defeat  the  written  inst^rument.^  Lord  Hardwicke  said  that  such 
evidence  has  nothing  to  do  with  the  statute  of  frauds.^ 

323.  Grantor  not  estopped  to  show  the  true  character  of 
the  conveyance.  —  (3ne  who  has  conveyed  by  absolute  deed,  but, 
in  fact,  merely  as  a  security  for  a  loan,  is  not  estopped  from  show- 
ing the  true  character  of  the  transaction  by  reason  that  he  has 
sworn,  on  an  application  for  discharge  in  bankruptcy,  that  he  had 
no  interest  in  the  land.  The  original  transaction  being  without 
fraud,  the  subsequent  improper  conduct  of  the  mortgagor,  even  if 
he  were  guilty  of  perjury,  would  not  affect  his  right.  At  any 
rate  the  mortgagee  cannot  make  the  misconduct  of  the  mortgagor, 
about  which  he  need  not  concern  himself,  a  ground  for  the  non- 
performance of  his  own  contract.'*^  The  statute  of  frauds  cannot 
be  set  up  as  inconsistent  with  showing  that  an  absolute  deed  was 
intended  by  the  parties  merely  as  a  securit}'^  for  the  payment  of 
money.*  If  the  grantee  deny  the  trust  raised  by  a  verbal  defea- 
sance, on  proof  of  the  trust,  such  denial  is  regarded  in  some  courts 
as  a  fraud,  and  the  grantee  is  held  to  be  as  firmlj^  bound  by  his 
verbal  agreement  as  he  would  be  by  a  written  one,  "  hedged  about 
with  all  the  formal  solemnity  known  to  the  law."  ^  An  agree- 
ment, however,  between  the  grantee  and  a  third  person  that  the 
land  shall  be  conveyed  to  him  upon  the  payment  by  him  of  the 
purchase  money  and  interest,  is  within  the  statute  of  frauds  ;  be- 
cause such  a  conveyance  and  agreement  do  not  constitute  a  mort- 
gage.^    To  constitute  a  mortgage  such  agreement  must  be  made 

1  Campbell  v.  Dearborn,  109  Mass.  130,  Maffitt  v.  Ryiul,  69  Pa.  St.  380,  387,  and 
per  Wells,  J.  ;  and  see  Glass  v.  Hulbcrt,  cases  cited  ;  Houser  v.  Laniont,  55  lb. 
102  Mass.  24 ;  Newton  v.  Fay,  10  Allen  311;  Payne  v.  Patterson,  77  lb.  134; 
(Mass.),  505.  Lee  v.   Evans,    8    Cal.   424;    Raynor    v. 

2  Walker  i\  Walker,  2  Atk.  98.  Lyons,  37  Cal.  452. 

8  Smith  V.  Cremer,  71  111.  185.  &  O'Neill  v.  Capelle,  62  Mo.  202. 

*  Russell  V.   Southard,  12   IIow.   139;         6  Payne  t>.  Patterson,  77   Pa.  St.  134; 

231 


§§  324,  325.]  PAROL   EVIDENCE   TO   PROVE 

with  the  grantor  and  not  with  a  stranger.  A  promise  by  a  third 
person  to  purchase  the  property,  and  convey  it  to  the  grantor,  is 
open  to  the  same  objection.^ 

2.    What  Facts  are  considered. 

324.  The  true  character  of  the  conveyance  will  be  inquired 
into,  and  effect  given  to  the  intention  of  the  parties  as  ascer- 
tained by  their  conduct  and  declarations  at  the  time  and  subse- 
quently.^ Thus,  a  verbal  agreement  made  at  the  time  of  the 
conveyance,  that  it  shall  operate  as  security  for  a  loan  of  money, 
if  clearly  proved,  is  decisive  of  the  character  of  the  transaction.^ 
And  so  is  an  agreement  that  the  deed  shall  stand  only  as  security 
for  a  debt,  and  that  in  case  of  a  sale  by  the  grantee  the  excess  of 
the  proceeds  over  the  debt  shall  be  paid  to  the  grantor.  Such 
an  agreement  and  deed  constitute  a  mortgage ;  and  therefore  the 
agreement  is  not  void,  as  an  attempt  to  create  a  trust  by  parol.* 
But  it  is  said  in  some  cases,  that  parol  evidence  of  such  an  agree- 
ment should  be  supported  by  other  facts  and  circumstances  which 
are  incompatible  with  the  idea  of  a  purchase,  and  leave  no  fair 
doubt  that  a  security  only  was  intended.^ 

325.  Evidence  of  the  continuance  of  the  debt,  such  as  the 
payment  of  interest  upon  it,  or  the  extension  of  the  time  of  pay- 
ment, is  generally  conclusive  of  the  character  of  the  original  trans- 
action as  a  mortgage.^  It  shows  either  that  the  preexisting  debt 
was  not  surrendered  or  cancelled  at  the  time  of  the  conveyance  ;  or 
in  case  there  was  no  such  debt,  it  shows  that  one  was  then  cre- 
ated."^    If  the  mortgagee  retains  the  evidence  of  a  preexisting  in- 

Wilson  V.  McDowell,  78  111.  514;  and  see  Dobbs,  13  S.  &  K.   (Pa.)  431  ;  Eiland  v. 

Sweet  V.  Mitchell,  15  Wis.  641.  Radford.  7  Ala.  724;  Carter  v.  Carter,  5 

1  Wilson  i\  McDowell, sifjjra;  Stephen-  Tex.  93;  Overton  v  Bigelow,  3  Yerg. 
son  V.  Thompson,  13  111.  186;  Perry  v.  (Tenn.)  513;  Lane  v.  Shears,  1  Wend. 
McHenry,  lb.  227.  (N.  Y.)  433. 

2  See  §  258;  Russell  v.  Southard,  12  ^  Anthony  v.  Anthony,  23  Ark.  479; 
How.  139;  Crane  v.  Bonnell,  2  N.  J.  Eq.  Andin<^  v.  Davis,  38  Miss.  574. 

(1   Green)  264  ;    Freeman  v.  Wilson,   51  ^  Crane  v.  Buchanan,  29  Ind.  570. 

Miss.  329  ;  Daubenspeck  v.  Piatt,  22  Cal.  5  Blackwell  v.  Overby,  6  Ired.   (N.  C.) 

330  ;    Lodge    v.   Turman,  24   Cal.    385  ;  Eq.  38  ;  Kelly  v.  Bryan,  lb.  283. 

Tibeau  v.  Tibeau,  22  Mo.  77  ;  Purviance  t^  See   §   265 ;    Ruffier  v.   Womack,  30 

r.  Holt,  8  111.  394  ;  Reigard  v.  McNeil,  38  Tex.    332;    Eaton    v.    Green,    22    Pick. 

111.400;  Whitcomb  v.  Sutherland,  18  111.  (Mass.)  526,530. 

578;    Williams   v.   Bishop,    15   111.   553;  7  Farmery.  Grose,  42  Cal.  169. 
Cole  V.  Boliird,  22  Pa.  St.  431  ;  Prewett  v. 

232 


AN    ABSOLUTE   DEED   A   MORTGAGE.  [§  325. 

debtedness,  and  receives  rent  from  the  mortgagor,  this  will  be 
regarded  as  a  payment  of  interest,  and  an  evidence  of  a  mortgage.^ 
The  taking  of  judgment  for  the  consideration  money  is  evidence 
that  an  absolute  deed  was  intended  to  be  a  mortgage.^ 

"  In  all  this  class  of  cases,"  says  Chief  Justice  Poland,^  "  one 
principle  has  universally  been  recognized,  that  in  order  to  convert 
a  conveyance  absolute  upon  its  face  into  a  mortgage,  or  security 
merely,  there  must  be  a  debt  to  be  secured.  Some  of  the  cases  go 
so  far  as  to  hold  that  there  must  be  a  debt  in  such  form  that  it 
can  be  enforced  by  action  against  the  debtor,  while  others  have 
denied  it.  We  have  no  occasion  now  to  decide  whether  the  debt 
must  be  such  that  it  could  be  enforced  by  action  against  the 
debtor ;  the  tendency  of  later  cases  seems  to  be  against  it.  But 
all  agree  that  there  must  be  a  debt  or  loan  to  be  secured,  that  the 
relation  of  debtor  and  creditor  must  exist  between  the  grantor 
and  grantee,  in  order  to  lay  the  foundation  for  converting  an  ab- 
solute deed  in  form  into  a  mere  security.  In  this  case  there  was 
no  note  or  bond,  or  other  evidence  of  debt  executed  by  the  de- 
fendants ;  and  though  this  is  by  no  means  conclusive,  still  it  is  a 
circumstance  favorable  to  the  orator,  as  if  the  parties  intended 
the  conveyance  merely  as  a  security  for  a  loan  or  debt,  it  would 
have  been  natural  that  the  ordinary  evidence  of  a  debt  should 
have  been  required  and  given."  Of  course,  where  there  is  no 
written  acknowledgment  of  a  debt  or  express  promise  to  pay,  the 
party  who  attempts  to  impeach  the  deed  is  obliged  to  make  out 
his  proofs  by  other  and  less  decisive  means.  The  absence  of  such 
evidence  of  debt  is  far  from  being  conclusive  that  the  transaction 
was  a  sale.*^  Formal  mortgages  are  sometimes  made  without  any 
personal  liability  on  the  part  of  the  mortgagor.  Moreover,  when 
it  is  considered  that  the  occasion  for  any  inquiry  in  such  case,  as 
to  the  nature  of  the  transaction,  arises  from  the  adoption  of  forms 
and  outward  appearances  supposed  to  differ  from  the  fact,  it  is 
hardly  reasonable  that  the  absence  of  a  written  contract  of  debt 
should  be  regarded  as  of  more  significance  than  the  absence  of  a 
formal  defeasance.^ 

i  Emior  17.  Thompson,  46  111.  214.  Ch.  5G ;   Russell    v.   Southard,   12   How. 

■^  Hamet  v.  Dundass,  4  Pa.  St.  178.  139  ;  Robinson  v.  Farrelly,  16  Ala.  472. 
3  Rich  V.  Doane  et  al.  35  Vt.  125,  128.  &  Per  Wells,  J.,  in  Campbell  v.  Dear- 

*  Plagg  V.  Mann,  14  Pick.  (Mass.)  467,  born,  109  Mass.  130,  at  144. 


478;   Biowu  v.  Dewey,  1    Saiidf.  (N.  Y.) 


233 


§§  326,  327.]       PAROL  EVIDENCE  TO  PROVE 

326.  When  the  transaction  is  shown  to  have  been  based 
upon  a  preexisting  debt,  the  question  to  be  settled  is,  whether 
the  intention  of  the  parties  was  to  cancel  that  debt  or  to  secure 
it.  This  is  a  question  of  fact,  for  the  determination  of  which  not 
only  the  negotiations  had  at  the  time  of  the  conveyance,  but  also 
the  subsequent  acts  of  the  parties  in  relation  to  it,  are  to  be  con- 
sidered. The  mere  fact  that  there  was  a  debt  at  the  time  is  not 
conclusive  that  the  conveyance  was  a  mortgage  for  its  security. 
It  can  hardly  be  said  that  it  raises  a  presumption  of  a  mortgage, 
though  the  courts  have  generally  manifested  a  disposition  to  con- 
strue all  conveyances  coupled  with  a  stipulation  for  a  reconvey- 
ance at  a  futui'e  day  as  mortgages.  But  whatever  presumption 
of  this  kind  there  may  be,  it  is  readily  repelled  by  any  facts  show- 
ing that  the  debt  was  surrendered  and  cancelled  at  the  time  of 
the  conveyance.  The  burden  is  then  upon  the  grantor  to  show 
that  the  deed  is  not  to  have  effect  according  to  its  terms. ^ 

Although  the  securities  are  not  surrendered,  if  the  debt  is  abso- 
lutely extinguished  a  simple  right  to  repurchase  does  not  make  the 
conveyance  a  mortgage.^  Whether  the  transaction  is  a  mortgage 
or  not  is  determined  by  the  answer  to  the  inquiry,  whether  it  was 
the  intention  of  the  parties  to  secure  the  payment  of  the  debt  or 
to  extinguish  it.^  If  the  object  of  the  parties  was  to  satisfy  the 
debt,  the  conveyance  must  necessaril}'^  vest  the  estate  absolutely 
in  the  grantee,  and  it  cannot  of  course  take  effect  as  a  mortgage  ;^ 
even  if  the  conveyance  contains  a  redemption  clause.^  But  the 
fact  that  the  evidence  of  the  indebtedness  is  retained  after  the 
conveyance  is  strong  evidence  that  it  was  taken  merely  as  se- 
curity.^ 

327.  The  transaction  may  have  been  a  sale,  although  the 
application  of  the  grantor  was  in  the  first  place  for  a  loan.  In 
such  a  case,  the  person  applied  to  having  refused  to  deal  except 
as  a  purchaser,  and  a  conveyance  having  been  made  to  him  with- 

1  See  §§  267,  269 ;  Hogarty  v.  Lynch,  Alleghany  11.  &  Coal  Co.  i'.  Casey,  79  lb. 
6  Bosw.  (N.  Y.)  138  ;  Ford  v.  Irwin,  18     84, 

Cal.  117  ;  14  lb.  428;  Baisch  v.  Oakeley,  *  Slee  v.  Manhattan   Co.  1    Paige  (N. 

68  Pa.  St.  92.  Y.),  48 ;  Hoopes  v.  Bailey,  28  Miss.  328  ; 

2  Baxter  v.  Willey,  9  Vt.  276.  Carter  v.  Williams,  23  La.  Ann.  281. 
«  Bigclow  V.  Topiiff,  2.5  Vt.  273  ;  Toler  5  West  v.  Hendrix,  28  Ala.  226. 

V.  Pender,  1   Dev.  &  B.  N.  C.  Eq.  445;        6  Ennor  j^,  Thompson,  46  111.  214. 
Todd  V.  Campbell,  32  Pa.  St.  250  ;  and  see 
234 


AN    ABSOLUTE   DEED   A    MORTGAGE.  [§§  328-330. 

out  his  givinji^  any  contract  to  reconvey,  the  court  refused,  after  a 
long  lapse  of  time,  to  convert  tlie  transaction  into  a  mortgiige, 
upon  evidence  of  loose  conversations  to  the  effect  that  the  grantee 
would  reconve}'^  upon  repayment,  although  coupled  with  evidence 
of  inadequacy  of  consideration.^ 

328.  The  continued  possession  of  the  grantor  is  also  evi- 
dence tending  to  show  that  the  conveyance  was  a  mortgnge.^ 
This  fact  alone  is  not  very  important,  but  adds  weight  to  other 
considerations  which  tend  to  this  conclusion. 

329.  Inadequacy  of  price  is  also  a  circumstance  tending  to 
show  that  the  transaction  is  a  mortgage  rather  than  a  sale,  just  as 
it  is  when  there  is  a  written  agreement  for  a  reconveyance.^ 

330.  Delay  in  asserting  an  absolute  deed  to  be  a  mortgage 
has  not  the  same  effect  upon  the  rights  of  the  parties  that  attends 
delay  in  seeking  to  enforce  in  equity  the  performance  of  an  exec- 
utory contract.*  Once  a  mortgage  always  a  mortgage  is  the 
maxim  of  the  law,  and  payment  does  not  stand  on  the  footing  of 
performance  in  equity.  The  character  of  the  deed  being  fixed  by 
the  evidence  as  conditional,  the  mortgagor  has  the  same  time  to 
make  payment  that  any  other  debtor  has.  The  only  effect  that 
delay  can  have  in  such  a  case  is  in  its  bearing  on  the  primary 
question  of  mortgage  or  no  mortgage.  The  poverty  of  the  mort- 
gagor, and  many  other  circumstances,  may  sufficiently  explain 
this.  No  lapse  of  time  short  of  that  which  is  sufficient  to  bar  the 
action  will  prevent  the  introduction  of  parol  evidence  to  show  a 
deed  was  "  intended  as  a  mortgage."  ^ 

But  lapse  of  time,  in  connection  with  other  evidence,  is  a  cir- 

1  De  France  v.  De  France,  34  Pa.  St.  Ala.  83-1 ;  Daubenspeck  i-.  Piatt,  22  Cal. 
385.  330. 

2  See  §  274;  Cotterell  v.  Purchase,  Cas.  3  See  §  275  ;  Davis  v.  Stonestreet,  4 
temp.  Tall)Ot,  61  ;  Lincoln  v.  Wright,  4  Ind.  101  ;  Wilson  r.  Patrick,  34  Iowa,  362, 
De  Gex  &  J.  16;  Rufficr  v.  Woniack,  anil  cases  cited;  Trucks  v.  Lindscy,  18 
30  Tex.  332;  Campbell  v.  Dearborn,  Iowa,  504  ;  West  u.  Ilindsey,  28  Ala.  226; 
109  Mass.  130,  145;  Steel  v.  Black,  Crews  v.  Threadgill,  35  Ala.  3.34  ;  Ovcrtoa 
3  Jones  (N.  C.)  Eq.  427;  Streator  v.  u.  Bigelow,  3  Yerg.  (Tcnn.)  513  ;  Gibbs  u. 
Jones,  3  Hawks  (N.  C),  423;   Sellers  v.  Penny,  43  Tex.  560. 

Stalcnp,  7  Ired.  (N.  C.)  Eq.  13;  Kemp  v.  *  Odenbaugh  v.  Bradford,  67  Pa.  St. 
Earp,  lb.   167;    Thompson   v.  Banks,   2     96. 

Md.  Ch.  430  ;    Crews   v.  Threadgill,   35        8  Anding  v.  Davis,  38  Miss.  574. 

235 


§  331.]  PAROL   EVIDENCE   TO   PROVE 

cumstaiice  to  be  considered.^  When  the  grantor  had  conveyed  by 
a  warranty  deed,  and  possession  followed  the  deed  through  sev- 
eral successive  grantees,  parol  evidence  that  a  mortgage  was  in- 
tended has  been  refused.  Length  of  time  short  of  the  period 
that  will  bar  redemption  affords  a  strong  presumption  against 
such  a  claim. ^  A  lapse  of  fourteen  years  from  the  time  of  the 
transaction  has  been  considered  a  material  circumstance.^ 

331.  It  is  immaterial  that  the  conveyance  should  be  made 
by  the  debtor.  —  It  is  sufficient  that  he  has  an  interest  in  the 
property,  either  legal  or  equitable.  Having  such  an  interest,  if 
he  procure  a  conveyance  of  the  property  to  one  who  pays  the 
price  of  it,  or  makes  an  advance  upon  it,  under  an  arrangement 
that  he  shall  be  allowed  to  have  the  property  upon  repajdng  the 
money  advanced,  he  has  a  right  to  redeem  The  grantee  in  such 
case  acquires  title  by  his  act,  and  as  security  for  his  debt,  and 
therefore  holds  the  title  as  his  mortgagee.'*  Tlius,  a  person  who 
advances  for  another  at  his  request  the  purchase  money  of  land 
which  the  latter  contracted  to  buy,  and  the  deed  be  made  to  the 
person  who  advanced  the  money,  he  is  as  much  a  mortgagee  as  if 
the  land  had  been  conveyed  to  him  directly  by  the  debtor.^  If 
part  onl}^  of  the  purchase  money  be  advanced  by  such  grantee, 
he  has  a  lien  upon  the  whole  land,  and  not  merely  upon  an  undi- 
vided interest  in  proportion  to  the  amount  of  his  advance.'' 

Therefore  when  a  trustee,  at  the  request  of  the  husband  of  the 
cestui  que  trust,  and  acting  as  her  agent  in  fact,  sold  certain  trust 
land  to  one  who  agreed  to  convey  the  land  to  the  husband  on  his 
repaying  the  purchase  money,  it  was  declared  that  the  transaction 
did  not  constitute  a  mortgage,  and  could  not  be  dealt  with  as 
such."  In  like  manner,  where  one  at  the  request  of  a  debtor 
whose  land  had  been  sold  on  execution  purchased  the  land,  agree- 
ing by  parol  with  the  debtor  that,  upon  his  paying  the  purchase 
money  and  interest,  he  would  convey  it  to  him,  or  if  the  land 
should  be  sold  for  more  than  this  to  pay  the  surplus  to  the  debtor, 

1  Tull  V.  Owen,  4  Y.  &  C.  192.  (N.  Y.)  390;  Wright  v.  Sluiraway,  1  Biss, 

2  Connor  v.  Chase,  15  Vt.  764.  23;  Houser  v.  Lamunt,  55  Pa.  St.  311. 
^  De  France  v.  De  France,  34  Pa.  St.         ^  Hidden  v.  Jordan,  21  Cal.  92. 

385.  6  Hidden  v.  Jordan,  supra. 

*  See  §§  241,  268 ;    Stoddard  v.  Whit-        "^  Penn.    Co.    Ins.   v.    Austin,   42    Pa. 
ing,  4G  N.  Y.  627  ;  Carr  v.  Carr,  52  N.  Y.     St.  257. 
251 ;  McBurney   v.    Wellman,   42   Barb. 
236 


AN  ABSOLUTE   DEED   A   MORTGAGE.  [§  332. 

it  was  held  that  this  transaction  did  not  constitute  a  mortgage, 
because  the  debtor  had  no  interest  in  the  land  at  the  time  of  this 
agreement,  and  of  the  purchase  made  in  consequence  of  it.  The 
purchase  was  not  conditional  between  such  purchaser  and  his 
grantor,  who  alone  was  interested  in  the  property  at  that  time. 
There  was  no  agreement  that  the  land  was,  under  any  circum- 
stances, to  revert  to  his  grantor.  But  if  one  holding  a  bond  or 
agreement  for  a  deed,  after  paying  a  portion  of  the  purchase 
money,  procure  a  third  person  to  pay  the  balance,  and  the  land  is 
conveyed  to  him  as  security,  he  agreeing  to  reconvey  within  a  cer- 
tain time  on  payment  of  his  advances,  the  transaction  is  a  mort- 
gage.^ Such  holder  of  the  agreement  for  purchase  has  an  inter- 
est in  the  land  by  reason  of  the  payment  made  by  him. 

332.  Sometimes  regarded  as  a  trust.  —  One  who  purchases 
at  a  foreclosure  sale  for  the  benefit  of  the  mortgagor,  and  thus 
acquires  the  title  at  a  price  below  the  value  of  the  property,  may 
be  deemed  a  trustee  of  the  party  for  whom  he  has  undertaken  the 
purchase.^  Such  an  agreement,  although  verbal  merely,  is  not 
within  the  statute  of  frauds.  The  trust  in  such  case  arises  or  re- 
sults upon  the  conveyance.  It  is  a  fraud  to  refuse  to  execute  the 
agreement,  and  a  court  of  equity  will  not  permit  the  grantee  to 
use  the  statute  of  frauds  as  an  instrument  of  fraud.  It  would 
seem,  however,  that  there  can  be  no  resulting  trust  unless  the 
person  claiming  it  has  some  interest  in  the  property.  "  If  A.  pur- 
chases an  estate  with  his  own  money,"  says  Chancellor  Kent, 
"and  takes  the  deed  in  the  name  of  B.,  a  trust  results  to  A.  because 
he  paid  the  money.  The  whole  foundation  of  the  trust  is  the  pay- 
ment of  the  money,  and  that  must  be  clearly  proved.  If,  there- 
fore, the  party  who  sets  up  a  resulting  trust  made  no  payment, 
he  cannot  be  permitted  to  show  by  parol  proof  that  the  pur- 
chase was  made  for  his  benefit,  or  on  his  account.  This  would 
be  to  overturn  the  statute  of  frauds."^     This  distinction  is  illus- 

1  McClintock  v.  McClintock,  3  Brewst.  405;  followed  in  Magnusson  v.  Johnson, 

(Pa.)  76.  73  111.  156  ;  Perry  v.  McHenry,  13  111.  227, 

-  ^^yan  v.  Dox,  34  N.  Y.  307  ;  Brown  and  cases  cited  ;  Stephenson  v.  Thomjjson, 

V.  Lynch,  1  Paige  (N.  Y.),  147  ;  Sandfoss  lb.  186;  Holmes  v.  Holmes,  44  111.   168; 

V.  Jones,  35  Cal.  486 ;  Reece  v.  Roush,  2  Ranstead  v.  Otis,  52  111.  30 ;  Robertson  v. 

Mont.    586,    and    cases    cited;    and   see  Robertson,  9  Watts   (Pa.),  32;  Haines  r. 

McDonough  i-.  O'Niel,  113  Mass.  92.  O'Conner,  10  lb.  313. 

3  Botsford  V.  Burr,  2  Johns.  (N.  Y.)  Ch. 

237 


§  332.]  PAROL  EVIDENCE  TO  PROVE 

trated  by  a  case  which  was  twice  before  the  Supreme  Court  of 
Illinois. 

Land  having  been  advertised  for  sale  under  a  senior  mortgage, 
the  owner  and  the  junior  mortgagee  arranged  with  a  third  person 
to  bid  the  land  off  for  the  amount  of  both  mortgages,  and  the 
junior  mortgagee  furnished  the  money  to  pay  the  amount  due  on 
the  first  mortgage,  with  the  understanding  that  the  owner  might 
have  further  time  in  which  to  sell  the  land  and  pay  off  the  amount 
due  on  both  mortgages,  with  interest  upon  them.  The  transac- 
tion was  held  to  amount  to  a  mortgage,  and  to  entitle  the  owner 
to  a  conveyance  upon  payment  according  to  the  understanding.^ 
But  when  the  case  was  first  before  the  court,  it  did  not  appear 
that  the  owner  had  paid  any  portion  of  the  purchase  money  at  the 
sale,  and  therefore  the  bill  to  enforce  the  trust  was  dismissed.^ 
In  like  manner,  it  may  be  shown  that  one  purchasing  at  a  sheriff's 
sale  really  purchased  for  the  benefit  of  the  debtor,  and  upon 
agreement  to  convey  to  him  upon  a  subsequent  repayment  of  the 
amount  paid.^  The  trust  ma}'  be  supported,  it  would  seem,  even 
when  the  person  who  claims  the  benefit  of  the  purchase  has  not 
actually  paid  any  money  towards  the  purchase,  if  under  an  ar- 
rangement with  the  purchaser  he  has  abstained  from  bidding  him- 
self, so  that  the  purchaser  has  obtained  the  property  at  a  price 
much  below  its  real  value.  The  person  for  whom  the  property 
was  bought  under  such  an  arrangement  is  considered  as  having 
an  interest  in  it.*^ 

A  transaction  whereby  one  who  is  embarrassed  convej^s  land  to 
another,  on  his  promise  to  obtain  a  loan  for  him  to  pay  his  debts 
from  a  building  association,  and  apply  the  rents  to  the  repayment 
of  the  loan,  and  to  reconvey  the  land  when  the  building  associa- 

1  Klock  V.  Walter,  70  111.  416.  See  Illi-  Barkelew  v.  Taylor,  8  N.  J.  Eq.  (4  Halst.) 
nois  cases  cited  on  rule  that  absolute  con-  206.  See  Price  u.  Evans,  26  Mo.  30,  where 
veyance  as  a  security  is  a  mortgage.  an  agreement  to  reconvey  in  such  case  was 

2  Walter  v.  Klock,  55  111.  .362.  regarded  as  a  temporary  privilege  and  not 
In  Merritt  v.  Brown,  19  N.  J.  Eq.  286,     a  mortgage,  in  view  of  the  circumstances 

where  the  purchaser  at  a  foreclosure  sale  of  the  case;  Sahler   v.  Signer,  37   Barb. 

agreed  to  allow  the  mortgagor  to   repur-  (N.  Y.)  329  ;  Smith  v.  Doyle,  46  111.  451  ; 

chase  within  a  given  time,  it  was  held  that  Roberts   v.  McMahan,  4    Greene  (Iowa), 

he  was   not  entitled  to  relief  after  that  34. 

time.     He  had  paid  nothing,  and  no  trust        *  Barkelew  v.   Taylor,  8  N.  J.  Eq.  (4 

resulted  in  his  favor.  Halst.)  206;  Marlatt  v.  Warwick,  18  N, 

3  Ilicster  V.  Maderia,  3  Watts  &  S.  (Pa.)  J.  Eq.  108. 
384;  Guinni;.  Locke,  I  Head (Tenn.),  110; 

238 


AN   ABSOLUTE   DEED   A   MORTGAGE.  [§§  333-335. 

tion  shall  expire,  .is  a  mortgage  and  not  a  trust.^  Whenever 
there  is  in  fact  an  advance  of  money  to  be  returned  within  a 
specified  time,  upon  the  securit}'  of  an  absolute  convej'ance,  the 
law  converts  the  transaction  into  a  mortgage,  whatever  may  be 
the  understanding  of  the  parties.^  Even  a  sheriff's  sale  wnll  be 
converted  into  a  mortgage  when  it  is  made  the  means  to  carry  out 
the  agreement  of  the  parties  to  raise  money  by  way  of  loan,  and 
the  loan  is  made  in  consequence  of  it.^ 

333.  Absolute  assignment  of  a  mortgage  as  collateral.  — 
The  same  rules  that  determine  the  admissibility  of  parol  evidence 
to  establish  an  absolute  deed  as  a  mortgage  are  equally  applicable 
to  show  that  an  assignment  of  a  mortgage,  absolute  in  form,  is  in 
fact  not  a  sale,  but  only  collateral  security  for  a  loan.*  The  chief 
inquirv  always  is,  whether  a  debt  was  created  by  the  transaction 
and  continued  afterwards.  The  character  of  security  once  hav- 
ing attached  to  the  mortgage,  this  character  continues  through 
whatever  changes  it  may  undergo  in  the  hands  of  the  assignee ; 
and  attaches  to  money  collected  upon  the  mortgage,  and  to  a  title 
that  has  become  absolute  by  foreclosure.^ 

334.  An  assignment  of  a  contract  of  purchase  as  security  is 
a  mortgage,  and  when  the  assignee  has  completed  the  payments 
and  taken  a  conveyance  to  himself,  the  relation  of  the  parties  re- 
mains the  same.  Under  the  principle,  once  a  mortgage  always  a 
mortgage,  the  transaction  retains  that  character  until  it  is  either 
foreclosed  or  redeemed.^ 

335.  Strict  proof  required.  —  One  who  alleges  that  his  deed 
in  absolute  form  was  intended  as  a  mortgage  only  is  required  to 
make  strict  proof  of  the  fact.  Having  deliberately  given  the 
transaction  the  form  of  a  bargain  and  sale,  slight  and  indefinite 
evidence  should  not  be  permitted  to  change  its  character.''     The 

1  Danzeisen's  Appeal,  73   Pa.   St.   65;         ^  lb. 

and  see  Church  v.  Cole,  36  Ind.  34.  ^  Smith  v.  Cremcr,  71  111.  18.5. 

2  Harper's  Ajiptal,  64  Pa.  St.  315,  320;  "  Ma2;niisson  v.  Johnson,  73  111.  1.56; 
and  sec  Steinruck's  Appeal,  70  I'm.  St.  Smith  v.  Cremer,  71  111.  185;  Price  v. 
289.  Karnes,  59   111.    276 ;  Tainter  v.  Keys,  43 

8  Swcetzer's  Appeal,  71  Pa.  St.  264  111.  -332  ;  Dwen  v.  Blake,  44  HI.  135 ;  Par- 

*  Pond  V.  Eddy,  113  Mass.  149  nitlee  v.  Lawrence,  lb.  405. 

239 


§  335.] 


PAROL   EVIDENCE   TO   PROVE 


proof  must  be  clear,  satisfactory,  and  convincing.!  The  fact  that 
the  grantor  understood  the  transaction  to  be  a  mortgage  is  not 
alone  sufficient  to  prove  it  to  be  so.^  One  who  has  assigned  a 
contract  for  the  purchase  of  real  estate  and  permitted  the  assignee 
to  take  an  absolute  deed  from  the  owner  cannot  be  allowed  to  re- 
deem upon  an  allegation,  without  proof,  that  the  transaction  was 
in  fact  a  mortgage,  and  that  he  assented  to  it  upon  the  confidence 
that  it  would  be  so  treated  by  his  creditor.^  Testimony  of  ad- 
missions by  the  grantee  made  subsequently  to  the  conveyance 
that  the  conveyance  was  intended  as  a  mortgage  may,  with  cor- 
roborating circumstances,  be  sufficient  to  establish  the  fact,^  but 
alone  are  not  sufficient.^ 

When,  however,  it  is  once  admitted  that  the  deed  was  made 
merely  to  secure  a  debt,  and  the  question  is,  what  is  the  amount 
of  the  debt,  the  burden  is  upon  the  grantee  to  show  it.*^ 


1  Jones  i;.Bnttan,  1  Woods,  667  ;  Bing- 
ham V.  Thompson,  4  Nev.  224 ;  Conwell 
V.  EviU,  4  Blackf.  (Ind.)  67;  Williams  v. 
Stratton,  18  Miss.  (10  Sm.  &  M.)418; 
Moore  v.  Ivery,  8  Ired.  (N.  C.)  Eq.  192  ; 
Arnold  w.  Mattison,  3  Eich.  (S.  C.)  Eq. 
1.53;  Williams  v.  Cheatham,  19  Ark.  278. 

2  Holmes  v.  Fresh,  9  Mo.  201  ;  Phoenix 
V.  Gardner,  13  Minn,  430;  Jones  v.  Brit- 
tan,  1  AVoods,  667. 

3  Ilogarty  v.  Lynch,  6  Bosw.  (N.  Y.) 
138. 

*  Bcntley  v.  Phelps,  2  Woodb.  &  M. 
426 ;  Mclntyre  v.  Humphreys,  1  Hoffm. 
(N.  Y.)  426"! 

^  Todd  V.  Campbell,  32  Pa.  St.  2.50. 

^  Freytag  v.  Hoeland,  23  N.  J.  Eq.  36. 
It  was  admitted  that  the  deed,  though  ab- 
solute on  its  face,  was  given  as  security 
only,  and  therefore  a  mortgage.  The 
plaintiff,  who  sought  to  recover  the  prop- 
erty, claimed  that  it  was  security  for  $700 
only  ;  the  defendant  claimed  that  it  was 
security  not  only  for  that  sum  but  for  pre- 
vious advances  of  about  $5,300.  The 
plaintiff  denied  that  these  advances  were 
made  to  him  or  on  his  credit;  and  said 
that  the  advances  were  made  to  his  wife 
and  daughter  for  a  different  consideration. 

The  circumstances  of  the  case,  in  the 

240 


language  of  the  chancellor,  are  "  novel  and 
peculiar." 

Hoeland  was  a  butcher,  and  followed 
his  trade  at  Newark  ;  and  afterwards  in 
California  and  Nevada.  He  also  specu- 
lated in  mining  rights  in  the  latter  states. 
He  prospered  and  had  money. 

Freytag  was  a  carpenter  ;  he  worked  at 
his  trade  in  Newark,  where  Hoeland 
boarded  for  a  time  in  his  family.  At  this 
time  either  Mrs.  Freytag  proposed  to  Hoe- 
land, or  Hoeland  proposed  to  Mrs.  Frey- 
tag, to  elope  together.  Each  said  the  offer 
came  from  the  other,  and  it  was  virtuously 
rejected  by  the  party  testifying.  The  re- 
sult was  that  Hoeland  changed  his  board- 
ing place,  and  Mr.  Freytag  in  an  encoun- 
ter with  him  got  a  wound  over  his  eye,  the 
scar  of  which  he  still  bore.  But  notwith- 
standing these  inharmonious  circumstances 
Hoeland  was  again  received  as  a  boarder 
by  Mrs.  Freytag,  with  whom  he  was  on 
very  friendly  and  confidential  terms. 

Katinka,  the  daughter  of  the  Freytags, 
was  growing  up  towards  womanhood  and 
Hoeland  took  a  fancy  to  lier,  and  proposed 
to  make  her  his  wife  when  the  proper  time 
should  arrive.  In  this  he  had  the  support 
of  the  mother.  Katinka  submitted  pas- 
sively, though  it  did  not  appear  that  she 


AN   ABSOLUTE   DEED    A   MORTGAGE.  [§§  336,  837. 

336.  Grantor  redeeming  must  comply  with  his  agree- 
ment. —  On  the  principle  that  "  he  who  seeks  equity  must  do 
equity,"  a  grantor  who  seeks  to  redeem  hind  from  a  conveyance 
made  to  secure  the  performance  of  a  verbal  agreement  to  pay  a 
certain  sum  of  money  in  gold  coin  should  l:)e  held  to  a  full  com- 
pliance with  the  terms  of  his  agreement,  as  a  condition  precedent 
to  a  reconveyance.!  On  this  ground  it  has  been  held,  that  al- 
though a  loan  upon  land  has  been  put  in  the  form  of  an  absolute 
deed  and  an  agreement  to  reconvey  for  the  purpose  of  covering 
up  a  contract  for  usurious  interest,  the  mortgagor  is  not  enti- 
tled to  the  statutory  penalties  or  forfeitures  for  usury,  but  must 
pay  on  redeeming  the  amount  of  the  original  loan,  with  legal 
interest.2 

Equity  will  not  relieve  a  grantor  on  his  own  application  from 
the  consequences  of  an  absolute  deed,  made  to  protect  his  prop- 
erty from  his  creditors.^ 


337.  A  judgment  creditor  may  show  the  character  of  his 


ever  engaged  herself  to  him.  Freytag  was 
an  easy-going,  submissive  man,  who  did 
not  get  on  in  the  world. 

Katinka  had  some  talent  for  mu:?ic,  and 
took  lessons  to  fit  her  for  taking  part  in 
concerts  and  the  opera.  Hoeland,  at  the 
solicitation  of  the  mother  and  daughter, 
furnished  them  with  money.  In  1868,  the 
Freytags  went  to  Europe;  Freytag  re- 
turned, but  the  mother  and  daughter  went 
to  Milan  and  remained  for  Kaiinka's  musi- 
cal education.  There  Hoeland  sent  money 
to  them,  at  the  earnest  request  of  the 
daughter,  who  in  one  of  her  letters  almost 
promised  to  come  back  to  him  at  San 
Francisco.  The  correspondence  and  all 
the  arrangements  were  conducted  without 
consulting  Freytag. 

"  It  would  not  be  strange  if  a  young 
woman  of  promise,  however  humble  her 
origin,  who  had  taken  lessons  of  masters 
of  music,  especially  in  Italy,  where  the  art 
has  reached  its  highest  cultivation,  should 
show  some  reluctance  to  fulfil  an  engage- 
ment made  for  her  in  childhood,  and 
marry  a  practical  butcher  far  older  than 
herself,  and  live  with  him  in  Nevada  or 
California.  Some  indications  of  this  feel- 
VOL.  I.  16 


iug,  or  perhaps  a  conclusion  that  mother 
and  daughter  had  been  using  his  attach- 
ment and  hopes  to  obtain  his  money  with- 
out any  regard  to  fulfilling  his  expectation, 
seems  to  have  aroused  Hoeland  to  his  sit- 
uation, and  to  have  changed  his  course 
regarding  them." 

In  the  summer  of  1869,  Hoeland  was  in 
Jersey  City  ;  Freytag  saw  him,  and  being 
pressed  for  money,  applied  to  him  for  a 
loan,  which  was  at  first  refused.  After- 
wards he  consented  to  advance  $700,  on 
receiving  an  absolute  conveyance  of  a 
house  and  lot  subject  to  a  mortgage  of 
$8,000,  but  worth  twice  that  sum;  and 
such  was  the  arrangement  made.  Hoe- 
land claimed  that  the  conveyance  secured 
the  advances  to  the  mother  and  daughter, 
who  were  still  in  Europe.  The  Chancel- 
lor held  that  the  burden  was  upon  the 
grantee  to  show  that  more  than  the  $700 
was  secured  ;  and  that  there  was  no  proof 
that  any  further  sum  was  secured. 

1  Cowing  V.  Rogers,  34  Cal.  648. 

-  Heacock  v.  Swartwout,  28  111.  291. 

8  See  §  283;  Arnold  v.  Mattison,  3 
Rich.  (S.  C.)  Eq.  153  ;  Hassam  v.  Barrett, 
115  Mass.  256. 

241 


§§  338,  339.]  PAROL   EVIDENCE   TO   PROVE 

debtor's  conveyance.  —  A  judgment  creditor,  who  has  pur- 
chased his  debtor's  land  at  a  sale  under  execution  issued  upon  his 
judgment,  may  show  that  an  absolute  conveyance  of  the  land 
made  by  his  debtor  was  in  fact  a  mortgage,  and  he  is  entitled  to 
a  conveyance  of  it  upon  paying  any  balance  due  upon  the  mort- 
gage.^  And  without  having  made  a  purchase  upon  execution,  a 
creditor  of  the  grantor  may  show  that  such  absolute  deed  is  really 
a  mortgage,  and  may  enforce  a  judgment  against  the  property  or 
the  proceeds  of  it  to  the  extent  of  the  surplus,  after  satisfying 
the  debt  for  the  security  of  which  it  was  conveyed.^  A  judgment 
obtained  against  the  grantor  by  a  creditor,  after  the  making  of  an 
absolute  deed,  which  is  really  a  mortgage,  becomes  a  lien  upon 
the  equity  of  redemption,  just  as  it  would  if  a  formal  mortgage 
had  been  given. ^ 

338.  Election  to  treat  the  conveyance  as  absolute.  —  A  mort- 
gagor who  abandons  his  right  to  redeem  from  an  absolute  con- 
veyance, and  elects  to  treat  the  conveyance  as  an  absolute  deed 
instead  of  a  mortgage,  is  bound  by  such  election,  and  cannot 
afterwards  redeem.*  He  may  also  verbally  waive  his  right  of 
redemption  in  favor  of  another  person,  and  after  a  long  acquies- 
cence in  the  transaction,  the  other  in  the  mean  time  having 
redeemed  the  land  and  improved  it,  he  Avill  not  be  allowed  to 
redtem  from  him.'^ 

339.  As  to  third  persons  the  grantee  is  absolute  owner.  — 

The  grantee  of  the  legal  title,  whetlier  the  transaction  be  a  mort- 
gage or  a  conditional  sale,  may  exercise  all  the  rights  of  an  abso- 
lute owner  as  to  third   parties.*^     The  grantor,  in  order  to  main- 

1  Judge  V.  Reese,  24  N.  J.  Eq.   387  ;  and,   when    he   renched   Chicago,  on   the 

Ch\ik  r.   Condit,  17  lb.  358;  Viuidcgiift  road,  he  wrote  to  his  father  to  redeem  the 

V.  Herlxrt,  lb.  466  ;  Van  Buren   v.   Ulm-  land  aud  it  bhould  be  his  ;  that  he  would 

stead,  5  Pai^e  (N.  Y.),  9.  never  return  from  California  until  he  was 

-  Allen    V.    Kemp,  29    Iowa,   452  ;    De  able  to  set  his  heel  upon  the  neck  of  the 

AVolf  V.    Strader,  26  111.   225  ;    Dwen  v.  Gnil    tribe  (relatives  of  the   gi;l).      The 

Blake,  44  111.  135.  father  redeemed  the  land,  sold,  it  and  in- 

8  ChrLstie  v.  Hale,  46  111.  117.  vested  the  proceeds  in  other  land.     It  was 

*  Maxfield  v.  Patchen,  29  111.  42.  held  that  the  father  was  not  liable  to  ac- 

^  Carpenter   v.   Carpenter,  70  111.  457.  count,  especially  after  a  lapse  of  eighteen 

The  plaintiff:  in  this  case  having  been  un-  years  unexplained. 

successful  in  a  love  matter  with  a  girl  in  «  See  Fiedler  v.  Darrin,  59  Barb.  651  ; 

the  neighborhood,  started  for   California,  McCarthy  v.  IMcCarthy,  36  Conn.  177. 

242 


AN   ABSOLUTE   DEED    A    MORTGAGE,  [§§  340,  341. 

tain  an  action  for  rent,  cannot  show  tliat  his  deed  was  intended  as 
a  mortgage,  and  that  he  is  entitled  to  the  position  and  rights  of  a 
mortgagor  in  possession.^ 

A  purchaser  who  has  knowledge  that  his  grantor,  though  hold- 
ing the  estate  by  an  absolute  conveyance,  nevertheless  is,  in  fact, 
only  a  mortgagee,  acquires  a  defeasible  estate  only,  and  it  is  de- 
feasible upon  the  same  terms  as  it  was  in  the  hands  of  the  orig- 
inal grantee.^  A  mortgage  was  made  of  certain  mills  to  secure 
the  sum  of  $4,000  ;  and  the  mortgagor  also  conveyed  to  the  mort- 
gagee other  land  absolutely,  as  security  for  a  further  sum  of 
$6,000.  The  mortgagee  assigned  the  mortgage,  and  conveyed  the 
land  to  a  third  person,  who  had  notice  of  the  character  of  the 
prior  conveyance.  This  assignee  foreclosed  the  mortgage  upon 
the  mills,  and  purchased  them  upon  the  sale.  He  then  mortgaged 
the  mills  and  the  other  lands  to  the  former  mortgagee ;  and  it  was 
held  that  this  mortgage  was  a  lien  upon  the  other  lands  only  to 
the  extent  of  the  original  loan  upon  them  of  $6,000,  upon  the 
payment  of  which  sum  the  original  owner  was  entitled  to  redeem.^ 

340.  Once  a  mortgage  always  a  mortgage.  —  If  originally 
taken  as  a  mortgage,  nothing  but  a  subsequent  agreement  of  the 
parties  can  change  its  character,  and  deprive  the  mortgagor  of  his 
right  of  redemption  ;  and  even  such  an  agreement  cannot  change 
its  character  as  to  intervening  interests.^  The  maxim,  "  Once  a 
mortgage  always  a  mortgage,"  applies  to  such  a  deed ;  and  if  a 
purchaser  take  a  conveyance  from  the  grantee,  with  a  knowledge 
that  the  grantor  claims  an  interest  in  the  property,  he  takes  it 
charged  with  the  same  equities  with  which  it  was  charged  in  the 
hands  of  the  mortgagee.^ 

341.  Grantee's  liability  for  mortgaged  land  sold  by  him.  — 
Although  a  grantee  in  an  absolute  deed,  intended  as  a  mortgage, 

1  Abbott  r.  Hanson, '24  N.J.  L.  (4  Zab.)  v.  Poolman,  3  Daly  (N.  Y.),2.36;  Clark 
493.  V.  Henry,  2  Cow.  (N.  Y.)  324;  S.  C.  7 

2  Houser  v.  Lamont,  55  Pa.  St.  311,  Johns.  Ch.  40;  Palmer  v.  Gurnsey,  7 
anil  cases  cited;  Kuhn  v.  Rumpp,  46  Cal.  Wend.  (N.  Y.)  248;  Cooper  v.  Whitney, 
299.  3  Hill  (N.  Y.),  95  ;  Marks  v.  Pell,  1  Johns. 

«  Williams  v.  Thorn,  11  Paige  (N.  Y.),  (N.  Y.)  Ch.  594;  Williams  v.  Thorn,  11 

459.  Paige  (N.  Y.),  459  ;  Parsons  v.  Mumford, 

*  Elliott  V.  Wood,  53  Barb.  (N.  Y.)  285  ;  3  Barb.  (N.  Y.)  Ch.  1.52. 

Tibbs  V.  Morris,  44  lb.  138  ;  Bunaclcugh  ^  French  v.  Burns,  35  Conn.  359. 

243 


§  342.]         PAROL  EVIDENCE  TO  PROVE,  ETC. 

has  the  power  to  convey  it  by  a  good  indefeasible  title  to  a  pur- 
chaser without  notice,  yet  he  is  liable  to  the  mortgagor  for  the 
value  of  the  land  so  conveyed  ;  and  he  cannot  defend  an  action  to 
recover  such  value  by  showing  that  the  mortgagor's  title  was  in- 
valid, and  that  the  legal  title  has  since  been  bought  in  by  the  pur- 
chaser. The  imperfection  of  the  title  did  not  justify  his  placing 
it  beyond  the  reach  of  the  mortgagor.  It  is  the  duty  of  the  mort- 
gagee upon  receiving  payment  to  restore  the  land,  without  regard 
to  the  condition  of  the  title,  in  no  worse  condition,  so  far  as  his 
own  acts  could  affect  it,  than  it  was  when  he  received  it.  But  in 
estimating  the  value  of  the  land  sold,  the  sura  paid  for  an  out- 
standing title,  although  paid  by  the  purchaser  and  not  by  the 
mortgagee,  may  be  deducted  from  the  value  of  the  land.^  The 
grantee  in  an  absolute  deed  by  way  of  mortgage,  who  has  sold  the 
land,  is  liable  for  the  proceeds  of  the  sale,  deducting  the  amount 
due  him  and  a  reasonable  compensation  for  effecting  the  sale.^ 

When  the  grantee  has  wrongfully  conveyed  the  property,  the 
grantor  may  at  his  election  claim  the  proceeds  of  the  sale  ;  ^  or 
the  value  of  the  land  at  the  time  when  the  debtor's  right  to  have 
it  restored  to  him  is  established.'^ 

342.  A  bill  in  equity  may  be  maintained  to  redeem,  as 
from  a  mortgage,  land  which  the  defendant  holds  by  deed  from 
the  plaintiff  upon  evidence  that  the  deed,  though  absolute  in  form, 
was  really  taken  as  security  for  a  loan.  The  decree  is  for  a  re- 
conveyance of  the  land  upon  the  payment  of  the  amount  which 
may  be  found  due  the  grantee,  or  upon  compliance  with  such 
terms  as  the  court  may  impose.^ 

1  Adkins  v.  Lewis,  5  Oregon,  292.  S.  (Pa.)  384  ;   Barkelew  v.  Taylor,   8  N. 

2  Van  Dusen  v.  Worrell,  4  Abb.  (N.  Y.)     J.  Eq.  (4  Halst.)  206. 

App.  Dec.  473.  In  an  action  for  money  ^  Meehan  v.  Forrester,  52  K  Y.  277. 
had  and  received:  Jackson  v.  Stevens,  108  *  Enos  v.  Sutherland,  U  Mich.  538. 
Mass.  94;  Hiester  v.  Maderia,  3  Watts  &        ^  Campbell  v.  Dearborn,  109  Mass.  130; 


244 


McDonough  v.  Squire,  111  Mass.  217. 


CHAPTER  IX. 

THE   DEBT   SECURED. 

1.  Description  of  the  Debt. 

343.  A  general  description  of  the  debt  suflBcient.^  —  It  is 
not  essential  that  the  mortgage  itself  should  contain  a  description 
of  the  debt  intended  to  be  secured.  The  nature  and  amount  of 
the  indebtedness  secured  may  be  expressed  in  terms  so  general 
that  subsequent  purchasers  and  attaching  creditors  must  look  be- 
yond the  deed,  to  ascertain  both  the  existence  and  amount  of  the 
debt.  It  is  even  held  that  a  deed  absolute  in  form,  if  in  fact  in- 
tended by  the  parties  as  a  security  for  subsequent  advances  or 
liabilities  to  be  assumed  by  the  grantee  in  the  grantor's  behalf,^  is 
a  valid  security  against  judgment  or  execution  creditors,  or  other 
incumbrancers,  although  such  intention  does  not  appear  upon  the 
deed,  or  by  any  evidence  in  writing. 

All  the  description  required  to  be  made  of  the  debt  is  a  general 
one,  which  will  put  those  interested  upon  inquiry.^  A  condition 
to  pay  the  mortgagee  "what  I  may  owe  him  on  book  "  was  held 
to  cover  not  only  the  present  but  the  future  indebtedness  of  the 
mortgagor,  at  least  until  the  mortgagee  should  receive  express  no- 
tice of  subsequent  incumbrances  or  interests,  and  he  is  not  bound 
to  watch  the  registry  for  subsequent  conveyances.  And  so  a 
mortgage  to  secure  the  payment  of  81,500,  which  the  mortgagor 
owed  on  book  account,  and  by  several  notes,  without  specifying 
the  amount  or  date  of  any  particular  note,  sufficiently  describes 
the  debt.*  A  mortgage  to  secure  a  claim  on  book  account,  for 
goods  sold  and  delivered,  in  about  the  sura  of  $5,000,  is  sufficient 

1  See  §  70.  *  Merrills  v.  Swift,  18  Conn.  257.     See, 

2  Gibson  v.  Seymour,  4  Vt.  518,  ap-  also,  Shirras  v.  Caig,  7  Cranch,  34  ;  Trus- 
proved  in  Seymour  v.  Darrow,  31  Vt.  122.  cott  v.  Kin<?,  6  Barb.  (N.  Y.)  346  ;  Stuy- 

3  McDauiels   v.   Colvin,    16    Vt.    300;  vesant  v.  Hall,  2  Barb.  (N.  Y.)  Ch.  151. 
Hurd  V.  Robinson,  II  Ohio  St.  232. 

245 


§  344.]  THE   DEBT    SECURED. 

to  secure  the  mortgagee's  actual  claim  not  exceeding  that  sum.^ 
And  when  the  mortgagor  made  a  mortgage  conditioned  to  pay  the 
mortgagee  "  all  the  notes  and  agreements  I  now  owe  or  have  with 
him,"  the  mortgagee  was  permitted  to  hold  the  security  for  pay- 
ments made  as  an  indorser  for  tlie  mortgagor  under  an  existing 
agreement.^  A  condition  to  pay  "  all  sums  that  the  mortgagee  may 
become  liable  to  pay  by  signing  or  otherwise  "  is  not  too  indefinite, 
and  includes  any  legal  liability  he  may  incur  for  the  mortgagor.^ 

344.  The  amount  of  an  ascertained  debt  should  be  stated. 
When  the  mortgage  is  given  to  secure  future  advances,  it  is  of 
course  not  practicable  to  state  in  the  mortgage  itself  anything 
more  than  a  limit  to  which  such  advances  may  reach  ;  and  such  a 
limit  is  required  by  some  courts,  though  it  is  generally  held  to 
be  sufficient  that  the  mortgage  sets  forth  the  foundation  of  such 
liability,  or  such  data,  as  will  put  any  one  interested  upon  the 
track  to  find  out  the  extent  of  the  liability.  Moreover,  when  the 
mortgage  is  given  to  secure  a  debt,  the  amount  of  which  is  not 
ascertained,  it  is  sufficient  if  the  mortgage  contains  such  facts 
about  it  as  will  lead  an  interested  party  to  ascertain  the  real  state 
of  the  incumbrance.  But  if  the  mortgage  is  given  to  secure  an 
ascertained  debt,  the  amount  of  that  debt  ought  to  be  stated ; 
and  accordingly  it  has  been  held  that  a  mortgage  given  to  secure 
an  existing  debt  of  a  fixed  amount,  but  which  is  described  in  the 
condition  of  the  mortgage  only  as  a  note  due  from  the  mortgagor 
to  the  mortgagee,  of  a  certain  date  payable  on  demand  with  in- 
terest, without  specifying  the  amount,  is  not  a  valid  security 
against  subsequent  incumbrances.^     This  is  required  not  by  any 

1  Lewis  V.  De  Forest,  20  Conn.  427.  as   if  it  were  enough  to  say,  'This  mort- 

2  Seymour  v.  Darrow,  31  Vt.  122.  gagi^  i*  intended  to  secure  any  debt  due  ; ' 
8  Soule  V.  Albee,  31  Vt.  142.  for  there  would  be  little  more  danger,  in 
*  Hart  V.  Chalker,  14  Conn.  77.     Chief  that  case,  of  substituting  fictitious  debts, 

Justice  Williams,  delivering  the  opinion  of  than  in  this  where  the  sum  is  omitted  ;  for 

the  court,  said:  "Whether  this  omission  he  who  would  substitute   fictitious  debts 

was  owing  to  design  or  accident,  we  are  under  that  general  description,  would  have 

not  informed.     In   either  case  the  effect  very   little   additional   restraint   from  the 

would  be  the  same ;  and  the  public  would  fact  that  the  date  and  time  were  given, 

not  have  that  information  which  it  was  It  is  said   that  there  is  enough  to  put  a 

intended  should  be  given,  and  which,  if  person  on  inquiry,  and  that  is  all  a  court 

generally  neglected,  would  make  our  rec-  of  equity  requires.     That  principle,  how- 

ords  of  little  value.      Indeed,,  if  such   a  ever,  we  do  not  think  is  applicable  to  cases 

general  description  is  good,  it  would  seem  of  this  class,  where  there  is  a  certain  known 

246 


DESCRIPTION    OF   THE   DEBT.  [§  345. 

specific  provision  of  the  registry  law  ;  but  the  spirit  of  the  system 
requires  that  the  record  should  disclose,  with  as  much  certainty  as 
the  nature  of  the  case  will  admit  of,  the  real  state  of  the  incum- 
brance. 

The  cases,  however,  which  require  this  degree  of  strictness  in 
describing  the  indebtedness,  are  not  supported  by  the  weight  of 
authority. 1  It  is  generally  held  to  be  sufficient  if  it  appear  that 
a  debt  is  secured,  and  that  the  amount  of  it  may  be  ascertained 
by  reference  to  other  instruments,  or  by  inquiry  otherwise.  Ac- 
cordingly it  is  held,  contrary  to  the  decisions  above  noticed,  that 
a  reference  in  a  mortgage  to  a  note  or  bond  secured  by  it,  without 
specifying  its  contents,  is  sufficient  to  put  subsequent  purchasers 
upon  inquiry  as  to  the  contents  of  the  note  or  bond,  and  to  charge 
them  with  notice  to  the  same  extent  as  if  the  amount  and  terms 
of  the  note  or  bond  had  been  fully  set  forth.^  It  is  not  even  nec- 
essary that  the  amount  of  the  note  should  be  specified  in  the 
mortgage,  when  it  is  otherwise  described.^ 

345.  The  debt  must  come  fairly  within  the  terms  used.  — 
A  mortgage,  to  secure  all  the  debts  due  from  the  grantor  to  the 
grantee,  and  all  liabilities  of  the  latter  as  surety  for  the  former,  is 

debt.     If  it  is   to  be  adopted  as  a  jreneral  eratiou,  or  a  creditor,  must  not  only  be 

rule,   it  would  overturn  all    the  cases  in  lodged  for  record  in  the  proper  office,  but 

which  this  court  have  lield   that  the  do-  must,  as  far  as  is  reasonably  practicable, 

scription  was  too  indefinite."     The  cases  set   out   the  amount  of  the  debt  for  the 

cited  by  the  Chief  Justice  in  this  conuec-  payment  of  which  the  parties  intend  it  as 

tion  are  :  Pettibone  v.  Griswold,  4  Conn,  a  security.     We  do  not  mean  to  intimate 

158,  162;   Crane  v.   Deming,    7  lb.  388,  that  an  omission  to  state  the  date  of  the 

395  ;  Booth  v.  Barnum,  9  lb.  286,  290  ;  note,  or  the  time  at  which  it  will  fall  due, 

BoUes  V.  Chauncey,  8  lb.  390.     See,  also,  or   the  precise  amount  of  the  debt,  even 

St.  John  V.   Camp,  17    Conn.  222,   230;  when  the  amount  is  ascertained,  is  essen- 

Metropolitan  Bank  i-.  Godfrey,  23  111.  579,  tial  to  make  the  mortgage  valid  ;  but  to 

604.  hold  the  omission  in  this  case  immaterial 

A  similar  decision  was  made  in  a  recent  would  be  in  effect  to  say  that  a  mortgage 

case  in  Kentucky.    Pearcet'.  Hall,  12  Bush,  need  only  show  that  the  mortgagor  is  in- 

209.     The  condition  was  for  the  payment  debted  to  the    mortgagee,  and   that  pur- 

of  a  note  fully  described,  with  the  excep-  chasers  and  creditors  mu?t,  upon  that  re- 

tion  that  the  amount  was  not  set  out,  nor  cital,  ascertain  for  themselves,  as  best  they 

was  there  anything  in  the  conveyance  from  can,  the  amount  of  the  indebtedness." 

which  any  inference  whatever  as  to  the  ^  Tiie   earlier  cases  in  Connecticut  are 

amount  could  be  drawn.     It  was  held,  that  not  supported   by  the   later   deci.sions   in 

a  subsequent  attaching  creditor  had  pre-  that  state. 

cedence.    Mr.  Justice  Lindsay  said  :  "  We  ^  pjj^g  j,_  Collins,  33  Me.  38. 

are  satisfied  that  a   mortgage,  to  be  good  ^  Somersworth  Sav.  Bk.  v.  Roberts,  38 

against  a  purchaser  for  a  valuable  consid-  N.  H.  22. 

247 


346.] 


THE    DEBT    SECURED. 


valid  without  a  more  particular  description. ^  But  when  it  is  at- 
tempted to  describe  the  debts  secured  to  entitle  a  debt  to  the 
benefit  of  the  security,  it  must  come  fairly  within  the  terms  used 
in  the  mortgage.  A  mortgage  which  correctly  described  other  debts, 
and  then  mentioned  "  a  note  or  notes  for  about  8350  "  was  held 
not  to  include  six  notes  amounting  to  over  -$1,500.2  jj-,  \[^q  man- 
ner, a  mortgage  securing  "  an  account  for  about  $50,"  does  not 
include  accounts  exceeding  $900. ^  A  mortgage  to  secure  a  gross 
sum,  which  the  mortgagee  was  at  liberty  to  furnish  in  materials 
toward  the  erection  of  a  house  for  the  mortgagor,  does  not  cover 
a  collateral  liability  assumed  by  the  mortgagee  as  surety  or  guar- 
antor for  the  mortgagor.'^ 

346.  A  mortgage  to  secure  an  unliquidated  debt,  as  for 
instance  an  open  book  account,  is  good.^  So  is  a  mortgage  by  a 
trustee  to  secure  the  payment  of  the  moneys  in  his  hands  belong- 
ing to  the  trust  estate,  the  amount  of  which  is  then  unascertained. 
So  is  a  mortgage  to  secure  the  fidelity  of  an  agent  or  factor ;  ^  or  a 
mortgage  to  secure  any  balance  that  may  remain  after  application 
to  the  debt  of  moneys  that  may  be  collected  upon  other  securities 
held  b}'^  the  creditor."  A  description  of  a  debt  secured  by  the 
mortgage  as  a  certain  sum,  "  or  thereabout,"  is  sufficient  to  put  a 
person  upon  inquiry  as  to  the  amount  of  the  incumbrance,  and 
the  mortgage  is  good  for  a  sum  not  very  materially  larger  than 
that  mentioned.^ 

Although  a  mortgage  be  given  for  a  definite  sum,  it  is  com- 
petent to  prove  by  parol  that  it  was  given  to  secure  an  open  ac- 
count, the  balance  of  which  is  continually  varying.^  A  mortgage 
to  secure  future  and  contingent  debts  is  good  against  a  prior  un- 
registered mortgage. ^'^ 

If  a  mortgage  be  given  to  secure  an  unliquidated  debt  or  an 
unadjusted  account,  or  balance  of  account,  the  burden  is  upon  the 

^  Vanmeter  r.  Vanmeter,  3  Gratt.  (Va.)  cover  unliquidated  damages.     Bethlehem 

148;    Michigan    Ins.    Co.    v.    Brown,     11  w.  Annis,  40  N.  H.  34. 

Mich.  26.5.  6  Stoughton  v.  Pasco,  .5  Conn.  442. 

2  Storms  V.  Storms,  3  Bush  (Ky.),  77.  ^  Clarke  v.  Bancroft,  13  Iowa,  320. 

*  Storms  V.  Storms,  supra.  8  Booth  v.  Barnum,  9  Conn.  286. 

*  Boyle  ?;.  White,  26  Me.  341.  9  Esterly   v.  Purdy,   50  How.   (N.  Y.) 
^  In  New  Hampshire,  where  a  statute  Pr.  350. 

requires  that  the  debt  shall  be  expressed         ^  Moore  v.  Ragland,  74  N.  C.  343. 
in   the   mortgage,  it  cannot  be  made  to 

248 


DESCRIPTION    OF   THE   DEBT.  [§§  347,  348. 

holder  of  it  to  produce  tlie  accounts  and  prove  what  is  due.^  A 
sum  to  be  ascertained  by  an  award  may  be  secured  by  mortgage. 
But  wliere  it  was  provided  that  the  referees,  taking  certain  data 
stated  in  the  mortgage  as  their  rule  or  guide,  should  make  their 
award  and  return  it  in  writing  to  the  parties  within  thirty  days 
after  their  appointment,  the  award  having  failed  by  reason  of  the 
misconduct  of  the  arbitrators,  it  was  held  that  tlie  mortgage  was 
security'  for  the  amount  of  an  award  to  be  made  in  tliis  manner, 
and  that  the  mortgagees  could  not  have  relief  in  equity  upon  a 
bill  for  a  sale  of  the  mortgaged  property.^ 

347.  Antecedent  debt.  —  Wlietlier  a  mortgage  given  to  se- 
cure an  antecedent  debt  entitles  the  mortgagee  to  the  position  of 
a  purchaser  for  value  is  a  question  elsewhere  considered,*'^  upon 
which  the  adjudications  are  not  in  harmony.  A  recital  in  the 
mortgage  tliat  the  mortgagor  is  indebted  to  the  mortgngee  in  a 
certain  sum,  for  which  "  lie  has  given  his  checks,"  does  not  imply 
that  the  mortgage  was  given  for  an'antecedent  debt.^ 

348.  A  mortgage  given  as  security  for  a  larger  indebted- 
ness.—  A  mortgage  was  given  to  secure  the  sum  of  1)3,000, 
when  the  mortgagor  was  indebted  to  the  mortgagee  in  the  sum  of 
$10,000  and  upwards,  being  the  balance  of  an  account  current  be- 
tween them  ;  and  it  was  objected  that  the  mortgagee  could  not, 
under  the  recording  system,  be  allowed  to  take  a  mortgage  to 
secure  a  part  of  the  debt,  and  hold  it  as  a  valid  security  on  the 
propert}'  until  the  whole  debt  is  paid.  The  objection  was  not  to 
any  uncertainty  in  the  debt  intended  to  be  secured,  but  rather 
to  the  application  of  subsequent  payments  made  by  the  debtor, 
without  any  specific  direction  at  the  time  as  to  their  applica- 
tion. But  it  was  held  that  the  payments  were  properly  applica- 
ble to  the  unsecured  part  of  the  debt,  and  that  the  mortgage  re- 
mained a  valid  security  for  the  remainder  of  the  debt.^  Though 
given  for  a  greater  sum  than  the  amount  due,  the  mortgage,  in  the 
absence  of  anj"^  fraudulent  intent,  is  valid  to  that  extent.^ 

1  De  Mott  V.  Benson,  4  Echv.  Ch.  297.  ^  Chester    v.    Wheelwright,    15    Conn. 

2  Emery  v.  Owings,  7  Gill  (Md.),  488.       .562. 

8  See  chapter  xi.  on  "  Registration'."        •'  Gordon   v.   Preston,    1    Watts    (Pa.), 
*  Winchester  v.  Baltimore,  &c.  R.  Co.     385. 
4  Md.  231. 

249 


§§  349,  350.]  THE  DEBT  SECURED. 

349.  Description  of  note.^  —  It  is  not  necessary  that  the 
mortgage  should  describe  the  note  secured  with  the  utmost  par- 
ticularity, but  only  so  that  it  may  be  reasonably  identified.  The 
omission  in  the  mortgage  of  the  words  "  or  order,"  in  describing 
a  note  payable  to  the  mortgagee  or  order,  is  not  such  a  variance 
as  to  render  the  note  inadmissible  in  evidence. ^  A  mortgage  con- 
ditioned to  pay  a  note  in  the  penal  sum  of  $787,  when  in  fact 
the  note  was  without  penalty,  is  not  invalid  for  the  want  of  rea- 
sonable certainty.  The  whole  sum  of  the  penalty  may  be  due, 
and  no  one  could  be  misled  except  through  his  own  negligence  to 
make  inquiry  as  to  the  amount  due.^  A  condition  that  the  mort- 
gage shall  be  void  upon  the  payment  of  the  notes  described  in  a 
certain  other  mortgage  referred  to  by  date  and  record  in  another 
county  of  the  state,  sufficiently  indicates  the  amount  secured  and 
is  valid.* 

A  mortgage  conditioned  to  pay  whatever  sum  the  mortgagor 
might  owe  the  mortgagee,  either  as  maker  or  indorser  of  any  notes 
or  bills,  bonds,  checks,  over-drafts,  or  securities  of  any  kind  given 
by  him,  according  to  the  conditions  of  any  such  writings  obliga- 
tory, executed  by  him  to  the  mortgagees  as  collateral  security,  was 
held  to  secure  only  such  debts  as  were  evidenced  by  writing.  ^ 

The  recitals  in  a  mortgage  are  competent  evidence  against  the 
mortgagor,  to  prove  the  consideration  of  the  note  described  in  it.^ 
It  will  be  presumed  that  a  "  note,"  referred  to  in  a  mortgage  or 
deed  of  trust,  is  not  under  seal." 

350.  It  is  not  necessary  that  all  the  particulars  of  the  note 
or  other  obligation  secured  by  a  mortgage  should  be  specified 
in  the  conditions  of  it,  in  order  to  identify  it  as  the  note  intended 
to  be  secured.  If  the  paper  offered  in  evidence  agrees  with  the 
description  contained  in  the  mortgage  so  far  as  that  goes,  only 
that  this  description  is  not  complete,  the  possession  and  produc- 
tion of  the  instrument  is  prima  facie  evidence  that  it  is  the  same 
mentioned  in  the  condition.  If,  however,  the  description  in  the 
condition  varies  from  the  paper  offered  in  evidence  in  certain  par- 

^  Sc«  §  71.  6  Warner  r.  Brooks,  U  Gray  (Mass.), 

2  Hou^rl,  r.  Bailey,  32  Conn.  288.  107. 

8  Frink  v.  Branch,  IG  Conn.  260.  7  Jackson  v.  Sackett,  7  Wend.  (N.  Y.) 

*  Kello^rg  ?;.  Frazier,  40  Iowa,  502.  94;    Walker    v.    McConiiico,     10     Yerg. 

^  Walker   v.  Paine,  31    Barb.   (N.  Y.)     (Tenn.)  228. 
213. 

250 


DESCRIPTION    OF    THE    DEBT.  [§  350. 

ticvilars,  then  the  mere  possession  of  it  might  not  furnish  even 
primd  facie  evidence  that  it  is  the  obligation  intended  to  be  se- 
cured.^ It  is  only  necessaiy  that  the  mortgage  shouhl  state  cor- 
rectly sufficient  facts  to  identify  the  paper  with  reasonable  cer- 
tainty ;  and  then  if  some  particulars  of  the  description  do  not 
correspond  precisely  with  the  instrument  produced  it  is  not  mate- 
rial. This  is  illustrated  by  the  case  of  a  mortgage  to  secure  "  a 
certain  promissory  note  made  and  delivered  on  or  about  the  eiglith 
day  of  August,  1867  ....  payable  on  or  about  one  year  from  date, 
to  the  N.  W.  U.  P.  Company,"  signed  by  three  persons,  for  a  sum 
named.  In  a  foreclosure  suit,  the  note  produced  was  dated  August 
6,  1867,  payable  on  or  before  September  1,  1868,  to  the  North- 
western Union  Packet  Company,  at  the  National  liank  of  La 
Crosse,  and  was  for  the  same  sum  and  signed  by  the  same  persons 
named  in  the  mortgage  ;  but  there  was  a  condition  inserted  that  it 
might  be  paid  by  the  delivery  of  a  barge  in  lieu  of  money.  The 
note  was  admitted  in  evidence  as  sufficiently  identified  by  the 
description  in  the  mortgage. ^ 

But  when  a  note  agrees  in  some  respects  with  the  description. 
though  it  varies  in  others,  it  may  be  proved  by  parol  to  be  the  one 
intended  in  the  mortgage.  If,  however,  the  note  produced  be 
totally  variant  from  that  described  in  the  mortgage,  such  evidence 
is  inadmissible  in  an  action  at  law.^ 

It  is  no  objection  to  the  validity  of  a  mortgage  that  it  does  not 
state  the  names  of  the  holders  of  the  notes  secured,  when  they 
are  otherwise  identified  ;  and  such  a  mortgage  when  duly  recorded 
is  notice  to  subsequent  purchasers  of  the  property  of  the  existence 
of  the  notes  intended  to  be  secured,  and  they  are  bound  by  the 
legal  effect  of  the  incumbrance.*  A  mortgage  for  the  payment  of 
debt,  according  to  the  condition  of  a  bond  recited  in  the  mort- 
gage, will  not  be  avoided  in  equity  for  the  reason  that  the  day  of 
payment  of  the  bond  has  already  passed.  At  law  the  condition 
being  impossible,  the  deed  would  be  regarded  as  absolute  ;  but  in 
equity  it  is  a  secui'ity  merely  like  an  ordinary  mr rtgage.^ 

When  a  mortgage  was  conditioned  for  the  payment  of  a  sum  of 

1  Robertson  v.  Stark,  15  N.  H.  112.  cock,  26  N.  Y.  378 ;  Hurd  v.  Robinson,  11 

2  Paine  v.   Benton,  32  Wis.   491  ;  and     Ohio  St.  232;  Paine  v.  Benton,  32  Wis. 
see  Williams  v.  Hilton,  3.5  Me.  547;  Par-    491. 

tridge  v.    Swazey,  46  Me.  414;  Johns  v.         ^  Follctt  v.  Heath,  15  Wis.  601. 
Church,  12  Pick.  (Mass.)  557;  Boody  v.        *  Boyd  v.  Parker,  43  Md   182. 
Davis,  20  N.  H.  140;  McKinster  v.  Bab-         5  Hughes  i;.  Edwards,  9  Wiieat.  489. 

251 


§§  351,  352.]  THE   DEBT    SECURED. 

money  on  a  day  named,  the  year  being  left  blank,  according  to 
the  tenor  of  a  promissory  note  for  the  same  sum,  and  the  note  was 
never  made,  and  only  a  small  part  of  the  money  loaned,  for  which 
a  receipt  was  given,  it  was  considered  that  the  bargain  was  incom- 
plete, and  the  mortgage  of  no  ef1;ect.  It  was  considered  as  never 
having  been  executed  and  delivered  for  the  purpose  of  having 
effect  according  to  its  tenor.^ 

It  is  not  necessary  that  the  mortgage  should  set  forth  a  literal 
copy  of  the  note  secured  by  it.  It  is  sufficient  to  describe  its  legal 
efrect.2 

351.  The  notes  referred  to  are  evidence  of  the  amount-  of 
the  debt.  —  When  there  is  any  uncertainty  as  to  the  amount  se- 
cured by  the  mortgage,  the  notes  referred  to  in  it  are  competent 
evidence  to  explain  the  language  as  against  the  mortgagor,  or  one 
who  purchased  the  equity  of  redemption,  with  notice  of  the  notes 
intended  to  be  secured  ;  as  when  the  mortgage  described  the  debt 
as  "  two  promissory  notes,  bearing  even  date  herewith,  for  the 
sum  of  five  hundred  dollars,  one  payable  in  1852,  and  the  other 
in  1853,"  and  the  notes  were  for  five  hundred  dollars  each.  Such 
evidence  is  not  contradictory  to  the  langu;ige  of  the  mortgage,  but 
explanatory .3  Where  a  mortgage  described  a  bond  secured  by  it 
as  of  a  certain  sum,  a  bond  for  a  smaller  sum,  and  dated  one  day 
later,  may  be  shown  in  evidence  to  have  been  substituted  for  the 
bond  described,  and  in  an  action  to  foreclose,  a  conditional  judg- 
ment may  be  rendered  for  the  amount  of  such  substituted  bond.^ 

362.  Parol  evidence  is  admissible  to  identify  the  note,  and 
show  that  the  note  produced  is  the  one  referred  to  in  the  mort- 
gage.^ Such  evidence  has  been  admitted  to  show  that  a  mortgage 
made  to  Ebenezer  Hall  3d,  conditioned  for  the  payment  of  a  note 
of  the  same  date,  in  fact  secured  a  note  to  Ebenezer  Hall,  which 
was  dated  several  months  earlier.*^  In  the  same  case  a  further  dis- 
crepancy of  one  thousand  years  in  the  date  of  the  note  was  con- 
sidered so  palpably  a  mere  clerical  mistake  that  no  explanation  of 

1  Parker  i;.  Parker,  17  Mass.  370.  Loskey,   1    Ala.   708;  Bell  v.  Fleming,  1 

2  Anil  !;.  Lee,  61  Mo.  160.  Beas.   (N.  J.)  13;  Jackson   v.   Bowen,    7 

3  Crafts  i;.  Crafts,  13  Gray  (Mass.),  360.  Cow.    (N.    Y.)    13  ;  Johns  v.  Church,  12 
^  Baxter  v.  Mclntire,  13  Gray  (Mass.),  Pick.  (Mass.)  557;  Goddard  v.  Sawyer,  9 

168.  Allen  (Mass.),  78. 

6  Aull  V.  Lee,  61  Mo.  160 ;  Doe  v.  Mc-         e  jjall  v.  Tufts,  18  Pick.  (Mass.)  455. 
252 


DESCRIPTION   OF   THE   DEBT.  [§  353. 

it  was  required.  In  general  it  may  be  said  that  a  mortgage  is  not 
invalid  either  between  the  parties,  or  as  to  third  persons,  on  ac- 
count of  uncertainty  in  the  description  of  the  debt,  wlien  upon 
the  ordinary  principle  of  allowing  extrinsic  evidence  to  apply  a 
written  contract  to  its  proper  subject  matter,  the  debt  intended 
to  be  secured  can  be  shown. ^  Very  considerable  latitude  has  been 
allowed  in  admitting  evidence  to  show  that  securities  offered  at 
the  trial  of  an  action  to  foreclose  a  mortgage  are  really  substi- 
tutes for  those  described  in  it ;  and  they  have  been  held  to  be 
secured  by  it,  although  not  corresponding  in  any  particular  with 
those  described  in  the  mortgage.^ 

A  mortgage  which  recited  that  it  was  given  to  secure  the  pay- 
ment of  a  note  described,  "and  also  in  consideration  of  the  further 
sum  of  $500,"  paid  to  the  mortgagor,  was  held  to  be  security  for 
the  sum  of  $500  in  addition  to  the  note.  Parol  evidence  of  this 
further  indebtedness  of  $500  was  allowed,  as  not  enlarging  the 
terms  of  the  mortgage,  but  simply  showing  the  true  amount.  A 
mortgage  conditioned  to  pay  a  certain  sum,  and  also  to  secure  a 
bond,  the  condition  of  which  covers  all  liabilities  of  the  debtor  to 
the  mortgagee,  is  construed  to  cover  all  indebtedness  under  the 
bond,  the  amount  and  nature  of  which  may  be  shown  by  parol.^ 

353.  A  deed  of  trust  or  mortgage  is  valid  without  any  note 
or  bond,^  although  it  purports  to  secure  a  note  or  bond,  and  sub- 
stantially describes  it.  The  mortgage  debt  exists  independently 
of  the  note.  The  inquiry  is,  does  the  debt  exist  ?  If  it  does,  it 
is  not  essential  that  there  should  be  any  evidence  of  it  beyond 
what  is  furnished  by  the  recitals  of  the  deed.^  The  validity  of  a 
mortgage  does  not  depend  upon  the  description  of  the  debt  con- 
tained in  the  deed,  nor  upon  the  form  of  the  indebtedness, 
whether  it  be  by  note  or  bond  or  otherwise ;  it  depends  rather 
upon  the  existence  of  the  debt  it  is  given  to  secure.^     Although 

1  Gill  V.  Pinney,  12  Ohio  St.  38;  Tons-  &  Eacho  v.  Cosby,  26  Graft.  (Va.)  112  ; 
ley  V.  Tousley,  5  lb.  78  ;  Hurd  v.  Robin-  and  .see  Flaj^g  v.  Mann,  2  Sum.  486,  534  ; 
son,  11  lb.  232.  Goodime  v.  Berrien,  2   Sandf.  (N.  Y.)  Ch. 

2  Baxter  r.  Mclntire,  13  Gray  (Mass.),  G30  ;  Burger  v.  Iluyhes,  5  Hun  (N.  Y.), 
168,  per  Dewey,  J.  180. 

«  IJabcock  V.  Lisk,  57  111.  327  ;  N.  H.  v.  «  Hodgdon  v.    Shannon,  44  N.  H.  572 

Willard,  10  N.  H.  210.  Griflin  t:  Cranston,  1   Bosw.  (N.  Y.)  281 

*  Smith  I'.  People's  Bank,  24  Me.  185  ;  Jackson  v.   Boweii,  7   Cow.   (N.  Y.)  13 

Mitchell  V.  Eurnham,  44  Me.  286.  Farmers'  Loan  &  Trust  Co  v.  Curtis,  7 

253 


§§  354,  355.]  THE   DEBT   SECURED. 

there  be  no  note  or  bond,  and  no  time  is  specified  for  the  payment 
of  the  mortgage  debt,  the  mortgage,  if  given  to  secure  a  debt  tliat 
actually  exists,  is  valid,  and  may  be  enforced  immediately .^ 

354.  Mistakes  in  describing  the  debt.  —  The  lien  of  a  mort- 
gage is  not  affected  by  a  clerical  inaccuracy  in  the  description  of 
the  debt ;  as  for  instance  in  the  date  of  the  note  secured,  or  in 
time  of  its  payment.^  The  amount  of  the  bond  secured  by  a  mort- 
gage having  been  left  blank,  and  the  mortgage  having  been  re- 
corded without  the  blank  being  filled,  the  mortgagor  afterwards 
executed  a  writing  under  seal,  stating  that  the  sum,  two  thousand 
dollars,  was  omitted  and  should  have  been  inserted,  and  this  writ- 
ing was  attached  to  the  page  on  which  the  registry  was  made. 
This  was  held  to  be  a  sufficient  record  as  against  a  subsequent 
mortgage.^  A  mistake  in  describing  the  mortgage  note  does  not 
ordinarily  invalidate  the  security.^ 

355.  The  renewal  of  the  original  note  of  the  mortgagor 
does  not  affect  the  security.^  —  But  a  mortgage  given  to  secure 
the  payment  at  maturity,  of  the  notes  of  another,  does  not  secure 
renewal  notes  substituted  in  place  of  them.  The  mortgagor  stands 
in  the  relation  of  surety  for  the  debtor,  and  his  obligation  cannot 
be  continued  without  his  consent.*^ 

It  is  questioned  whether  a  mortgage  can  be  modified  by  substi- 
tuting for  a  part  of  the  bond  secured  by  it  a  due  bill  payable 
at  a  different  time,  and  to  a  different  person  ;  it  certainly  cannot 
be  so  changed  and  the  security  transferred  to  the  due  bill,  except 
upon  a  clear  showing  that  such  was  the  agreement  when  the  ex- 
change was  made.''  An  agreement  that  a  promissory  note  shall 
be  substituted  for  notes  of  a  larger  amount  already  secured  by  a 
mortgage,  and  if  paid  at  maturity  shall  be  considered  a  payment 
and  discharge  pro  tanto  of  those  notes  and  of  the  mortgage,  and 
that  the  mortgage  shall  be  held  as  collateral  security  for  the  new 
note,  and  not  be  discharged  or  cancelled   until  that  is   paid,  does 

N.   Y.  4G6;  Coutant  v.   Servoss,  3  Barb.  •*  Porter  v.  Smith,  13  Vt.  492. 

(N.  Y.)  128.  5  See   chapter   xxi.   on   "  Payment  ;  " 

1  Brookings   v.   White,    49    Me.    479;  Williams  y.  Starr,  5  Wis.  534  ;  Bank  of  S. 
Carnal!  u.  Duval,  22  Ark.  136.  C.  v.  Rose,   1   Strobh.   (S.  C.)    Eq.  257; 

2  Tousley  v.  Tousley,  5  Ohio  St.  78.  Enston  v.  Friday,  2  Rich.  (S.  C.)  427. 
8  Lambert  v.  Hull,  7  N.J.  Eq.  (3  Ilalst.)         6  Ayres  v.  Wattson,  57  Pa.  St.  360. 

410,  G51.  7  Tucker  v.  Alger,  30  Mich.  67. 

254 


DESCRIPTION    OF    THE   DEBT.  [§§  356,  857. 

not  create  a  lien  upon  the  mortgaged  property  to  secure  its  pay- 
ment. The  note  is  not  given  in  renewal  or  consolidation  of  the 
mortgage  notes,  or  any  of  them.  The  relation  of  the  parties  is 
not  changed.  No  new  right  in  the  mortgaged  property  is  given, 
and  no  new  lien  is  created. ^ 

356.  Several  mortgages  securing  one  debt.^ —  When  several 
mortgages  are  made  of  distinct  parcels  of  land,  and  each  is  con- 
ditioned for  the  payment  of  the  whole  debt,  they  constitute  in 
effect  one  mortgage,  and  their  unity  is  determined  by  the  debt 
secured.^  Parol  evidence  is  admissible  for  this  purpose,  and  whether 
the  debt  be  described  in  the  same  way  in  the  different  mortgages 
or  not,  it  may  be  shown  that  they  are  only  additional  security  for 
the  same  debt.^  A  mortgage  given  to  secure  separate  debts  to 
several  persons  is  several  in  its  nature,  as  much  as  if  several  in- 
struments had  been  simultaneously  executed.^ 

357,  Enlarging  the  terms  of  the  mortgage.  —  If  a  mortgage 
secure  a  specific  sum,  the  parties  cannot  by  parol  agreement,  as 
against  others  who  have  acquired  rights  in  the  property,  extend 
the  mortgage  to  cover  other  debts,  or  further  advances.*^  Neither 
can  the  mortgagor  as  against  them  increase  the  charge  upon  the 
land  by  confessing  judgment,  and  thus  compounding  the  interest.'^ 
The  mortgage  being  given  to  secure  a  certain  debt  is  valid  for 
that  purpose  only  ;  but  whatever  form  the  debt  may  assume,  so 
long  as  it  can  be  traced,  the  security  remains  good  for  that.^ 

As  against  the  mortgagor,  his  agreement  that  the  mortgage 
shall  stand  as  security  to  the  mortgagee  for  further  advancements, 

1  Howe  V.  Wilder,  11  Gray  (Mass.),  r.  Pratt,  22  Pick.  (Mass.)  556;  Eceleston 
267.  V.  Clipsham,  1  Sauiid.  153. 

This  agreement  was  regarded  the  same         '^  Stoddard  v.  Hart,  2.3  N.  Y.  556  ;  Town- 

as  if  the  mortgagee  had  said,  "  Give  me  send   v.    Empire   Stone  Dressing    Co.   6 

your  note  for  $600;  if  paid,  I  will  indorse  Duer  (N.  Y.),  208,  and  cases  cited  ;  Large 

it  on  the  mortgages ;  if  not,  the  mortgages  v.  Van   Doren,   14   N.   J.  Eq.  208.     See 

are  to  stand  as  thty  are."  Beekman   F.    Ins.    Co.    v.    First    M.   E. 

2  See  §  135.  Church,  29  Barb.  (N.  Y.)  658;  18  How. 

3  Franklin  v.  Gorham,  2  Day  (Coini.),  Pr.  431. 

143.  7  :\TcGready  t'.  McGready,  17  Mo.  597. 

*  Anderson  v.   Davies,  6   Munf.  (Va.)  "  I'atterson  v.  John.ston,  7   Ohio,  225  ; 

484.  Van  Wagner  v.  Van  Wagner,  7  N.  J.  Eq. 

6  Gardner  v.   Dicderichs,   41    111.  158;  (3  Halst.)  27. 
Thayer  v.  Campbell,  9  Mo.  280 ;  Burnett 

255 


§  358.] 


THE   DEBT    SECURED. 


although  it  be  oral  onl}',  is  valid,  and  after  the  advances  have  been 
made  upon  the  faith  of  it,  a  court  of  equity  will  not  allow  the 
mortgagor  to  redeem  without  performing  it.  It  will  apply  to  him 
the  maxim,  that  he  who  seeks  equity  must  do  equity.  It  will 
also  apply  the  same  rule  to  any  one  claiming  under  him  with 
notice.  Therefore,  where  the  assignees  in  insolvency  of  the 
mortgagor  have  conveyed  the  equity  of  redemption  to  his  wife, 
without  consideration  and  with  notice  of  such  agreement,  a  court 
of  equity  will  decline  to  aid  her  to  redeem  the  mortgage  in  vio- 
lation of  this  contract.^  So,  in  answer  to  a  bill  in  equity  by  an 
assignee  in  bankruptcy  to  redeem  a  mortgage,  it  is  competent  for 
the  holder  of  the  mortgage  to  show  that  the  bankrupt  had,  for  a 
valuable  consideration,  orall}'  agreed  that  a  mortgage  made  by 
him  to  another  person,  and  paid  in  large  part,  should  not  be  dis- 
charged, but  should  be  assigned  to  the  creditor  as  security  for  fur- 
ther loans  and  debts.  Such  oral  agreement  could  not  be  set  up 
against  a  subsequent  mortgagee,  or  against  an  attaching  creditor  ; 
nor  could  it  be  set  up  against  the  mortgagor  or  his  assignee  in  a 
suit  at  law,  but  it  may  be  in  equity .^ 

But  in  Pennsylvania  the  courts  say  they  will  not  tolerate  an 
oral  mortgage  or  secret  lien  ;  and  tlierefore  where  the  mortgage 
has  been  given  by  tenants  in  common,  to  secure  a  partnership  debt, 
the  mortgage  cannot  after  payment  be  kept  alive  as  security  for 
an  individual  debt  of  one  of  them  to  the  mortgagee,  even  as 
against  his  interest.^ 

When  a  mortgage  is  made  to  secure  a  certain  sum  of  money, 
and  afterwards  an  additional  provision  is  made  but  not  recorded, 
that  this  sum  shall  be  paid  in  gold,  it  can  be  enforced  by  a  sale 
for  gold  as  against  subsequent  incumbrancers  whose  lien  attached 
after  this  addition  was  made.^ 

358.  Taxes  and  assessments.^  —  There  is  an  apparent  excep- 
tion to  the  rule  that  the  mortgage  debt  cannot,  as  against  third 
persons,  be  increased  after  the  execution  of  the  mortgage  ;  and 

1  Stone  V.  Lane,  10  Allen  (Mass.),  74  ;  reversing  3  Phila.  62  ;  S.  C.  under  name 
and  see  Joslynv.Wjman,  5  Allen  (Mass.),  Pechin  v.  Brown,  dissenting  opinion,  p. 
62;  Crafts  v.  Crafts,  13  Gray  (Mass.),  99;  and  to  same  eflFect,  see  O'Neill  v. 
360.  Capelle,  62  Mo.  202. 

2  Upton  V.  Nl.  Bank  of  South  Reading,  *  See  Poett  v.  Stearns,  31  Cal.  78. 
120  Mass.  153.  6  ggg  §  77. 

8  Thomas's    Appeal,  30    Pa.    St.   378, 
256 


DESCRIPTION    OF   THE   DEBT.  [§  359. 

that  is,  that  money  paid  by  the  mortgagee,  to  redeem  the  prem- 
ises from  a  tax  sale,  or  from  any  charge  which  is  a  paramount 
lien  upon  the  property,  becomes  a  part  of  the  mortgage  debt,  and 
may  be  enforced  by  foreclosure.^  The  mortgage  is  usually  so 
drawn  that  in  terms  it  includes  under  the  security  any  payments 
that  have  been  made  b}^  the  mortgagee  in  consequence  of  any  de- 
fault of  the  mortgagor.  But  without  any  such  provision,  the 
paj'ment  by  the  mortgagee  of  charges  which  are  a  prior  lien,  and 
the  removal  of  which  is  essential  to  his  own  protection  and  safety, 
gives  him  in  equity  not  only  a  right  to  retain  the  amount  paid  out 
of  the  proceeds  of  the  land  when  sold  upon  foreclosure,  as  against 
the  raortgagor,^  but  also  preference  by  way  of  subrogation  to 
other  incumbrances,  even  though  they  are  prior  to  him,  but  whose 
liens  have  been  protected  by  such  pajnuent.^ 

359.  Solicitor's  fee.  —  In  addition  to  the  mortgage  debt,  the 
mortgage  may  be  made  to  secure  the  payment  of  a  reasonable 
solicitor's  fee,  in  case  of  a  foreclosure  of  the  mortgage.^  The 
amount  of  such  fee  may  be  specified  in  the  mortgage,  or  left  to 
the  discretion  of  the  court.  The  stipulation  may  be  enforced  as 
well  against  subsequent  purchasers  and  incumbrancers  as  against 
the  mortgagor  himself.^  Such  fee  is  presumed  to  be  in  addition 
to  the  taxable  costs  allowed  by  law.^  If  it  be  shown,  however, 
that  suit  was  unnecessary,  attorney's  fees  have  been  refused,  al- 
though stipulated  for  in  the  mortgage."  Such  a  stipulation,  if 
not  unreasonable  in  amount,  is  not  regarded  as  imposing  a  pen- 
alt}^  but  merely  as  giving  compensation  to  the  mortgagee  for  ex- 
penses incurred  in  consequence  of  the  mortgagor's  default.^  The 
lien  of  the  mortgage  covers  such  a  provision  as  much  as  the  debt 
itself ;  and  it  also  attaches  equally  to  the  costs  of  suit,  and  to  ex- 

1  \Vrij;ht  I'.  Langley,  36  111.381;  Mix  *  See    chapter    xxxv.     "Decree    of 

I?.  Ilotchkiss,  14  Conn  32  ;  Hill  v.  Eldred,  Sale;"  Bronson  v.  La  Crosse  R.  Co.  2 

49  Cal.  399;   Burr    v.   Veeder,  3  Wend.  Wall.  283;  Rice  v.  Cribb,  12  Wis.  179; 

(N.  Y.)  412  ;  Faure  v.  Winaus,  Ilopk.  (N.  Hitchcock  v.  Merrick,  15  Wis.  .522.     See, 

Y.)  Ch.  283  ;  Kortriyht  v.  Oadv,  23  Barb,  however,  Sage  v.  Riggs,  12  Mich.  313. 

(N.  Y.)  490;  5  JiUU.  Pr.  358  ;  Robinson  v.  ^  Pierce  v.  Kneeland,  16  Wis.  672. 

R\;in,  25  N.  Y.  320.  «  Hitchcock  v.  Merrick,  15  Wis.  522. 

'^  Silver  Lake  Bank   v.  North,  4  Johns.  '  Alexandrie  r.  Saloy,  14  La.  Ann.  327. 

(N.  Y.)  Ch.  37;  Rapelye  i;.  Prince,  4  Hill  «  Robinson  v.  Loomis,   51   Pa.  St.  78. 

(N.  Y.),  119;  Dale  i'.  McEvers,  2  Cow.  (N.  The   stipulation  in  this  case  was  five  per 

Y.)  118.  cent. 

8  Cook  V.  KraCt,  3  Lans.  (N.  Y.)  512. 

VOL.  I.                                   17  257 


§§  360-362.]  THE   DEBT   SECURED. 

penses  necessarily  incurred  in  enforcing   the  mortgage,  although 
not  specially  provided  for  in  the  mortgage.^ 

360.  Tacking  other  debts.^  —  The  mortgagee  cannot  tack  to 
his  mortgage  any  debt  not  secured  thereby,  and  require  its  pay- 
ment by  the  mortgagor  as  a  condition  to  his  right  to  redeem.^  A 
mortgage  executed  to  secure  the  payment  of^  notes  of  a  definite 
amount  cannot,  after  the  payment  of  the  notes,  be  made  availa- 
ble to  secure  further  advances,  unless  it  is  so  provided  in  the  mort- 
gage, or  by  a  legal  contract  between  the  parties.^  A  verbal  agree- 
ment is  insufficient  for  that  purpose.  But  when  such  was  the 
purpose  of  the  mortgage  in  the  beginning,  there  is  no  objection 
that  it  secures  an  existing  demand  and  also  future  advances.'' 

A  penalty  of  twenty  per  cent,  imposed  by  statute  for  omitting 
prompt  payment  of  school  money  loaned  upon  mortgage,  is  not  a 
lien  under  the  mortgage,  but  is  imposed  upon  the  borrower  only.'' 
Under  a  mortgage  to  a  building  association,  expressly  securing 
only  monthly  payments,  the  payment  of  fines  and  other  dues  to 
the  association  is  not  secured." 

361.  Increasing  the  rate  of  interest.  —  The  parties  to  a  mort- 
gage cannot,  as  against  subsequent  parties  in  interest,  stipulate  by 
an  unrecorded  agreement  for  a  higher  rate  of  interest  than  that 
provided  in  the  mortgage  as  recorded,  nor  can  they  by  such  means 
incorporate  into  the  mortgage  any  additional  indebtedness.  A 
subsequent  mortgagee  or  purchaser  has  the  right  to  redeem,  by 
paying  the  amount  due  according  to  its  terms.*^ 

« 

362.  Redelivery  of  mortgage  for  a  new  obligation.^  —  Gen- 
erally it  is  held  that  a  mortgage  which  has  been  satisfied  and 
delivered  up  to  the  mortgagor  without  being  cancelled  may  be 
again  delivered  by  him  as  a  valid  security,  except  as  against  inter- 
vening securities.  The  delivery  of  the  security  gave  it  efficacy 
in  the  beginning ;  and  if,  after  having  used  it  for  one  purpose,  he 

1  Hurd  V.  Coleman,  42  Me.  182.  e  Bradley  v.  Snyder,  14  111.  262. 

2  See  cliflpter  xxii.  on  "  Redemption."        '  Hamilton  Building  Ass'n  v.  Reynolds, 
8  Bacon  v.  Cottrell,  13  Minn.  194.  5  Duer  (N,  Y.),  671. 

*  Johnson  v.  Anderson,  30  Ark.  745.  »  Gardner  i;.  Emerson,  40  111.  296. 

5  North  V.  Crowell,  11  N.  H.  251.  »  See  chapter  xxi.  on  "  Payment." 

258 


FUTURE   ADVANCES.  [§§  363,  364. 

redeliver  it  for  another  purpose,  the  redelivery  gives  it  vitality 
again,  ^ 

363.  A  mortgage  already  recorded  may  be  made  to  secure  a 
further  sum  by  an  indorsement  upon  the  mortgage  executed  and 
acknowledged  with  the  usual  formalities  of  a  deed,  and  recoi-ded 
with  a  proper  reference  to  the  record  of  the  mortgage.  This  has 
been  done  where  the  mortgage  was  given  to  secure  an  acceptor  of 
drafts,  and  by  such  an  indorsement  it  was  made  to  apply  in  all 
its  provisions  and  terms  as  security  for  other  drafts.  The  record 
of  the  indorsement  made  a  valid  extension  of  the  condition  of  the 
mortgage  as  first  made  and  recorded  to  the  further  liability  in- 
curred by  the  mortgagee.^ 

2.  Future  Advances. 

364.  In  general.  —  There  has  been  much  diversity  of  opinion 
among  courts  and  law  writers  on  the  question  of  the  validity  of 
mortgages  to  secure  future  advances,  and  as  to  the  rights  of  mort- 
gagees under  such  mortgages  against  subsequent  purchasers  and 
incumbrancers.  Although  the  record  must  show  the  existence  of 
the  mortgage  in  order  to  avail  anything  as  a  notice,  yet,  it  is 
generally  conceded  that  it  need  not  show  the  exact  amount  of 
the  incumbrance.  But  while  according  to  some  authorities  the 
limit  of  these  advances  should  be  named,  so  that  an  inquirer  may 
know  that  the  incumbrance  cannot  exceed  a  certain  amount,^  ac- 
cording to  others  there  is  no  necessity  for  limiting  the  amount  of 
the  intended  advances  in  anj^  way.^  But  even  where  a  limitation 
is  necessary  in  order  to  constitute  a  continuing  security  which 
will  not  be  affected  by  subsequent  conveyances,  a  recorded  mort- 
gage for  an  unlimited  sum  is  notice  to  a  subsequent  incumbrancer 
as  to  all  sums  advanced  upon  the  mortgage  before  the  subsequent 
lien  attached.  Moreover,  the  record  of  the  subsequent  mortgage 
is  no  notice  to  such  prior  mortgagee  that  any  subsequent  lien  has 
attached.^  The  subsequent  mortgagee  can  limit  the  credit  that 
may  be    safely   given    under  the    mortgage    for  future    advances 

1  Underhill  v.  Atwater,    22  N.  J.  Eq.  13;  lb.  490;  Beekman  f.  Frost,  18  Johns. 
16,  per  Zabriskie,  Chancellor  (N.  Y.)  544. 

2  Choteau    v.    Thompson,    2    Ohio    St.  *  Witczinski  v.  Everman,  51  Miss.  841. 
114.  5  See  Robinson  v.  Williams,  22  N.  Y. 

3  Bell  V.  Fleming,  12  N.J.  Eq.  (1  Bcas.)  380  ;  and  §  372. 

259 


§  365.]  THE    DEBT    SECURED. 

only  b}^  giving  the  holder  of  it  express  notice  of  his  lien,  and  a 
notice  also  that  he  must  make  no  further  advances  on  the  credit 
of  that  mortgage.^  The  mortgage  will  then  stand  as  security  for 
the  real  equitable  claims  of  the  mortgagee,  whether  they  existed 
at  the  date  of  the  mortgage  or  arose  afterwards,  but  prior  to  the 
receipt  of  such  notice.^  If  such  mortgagee  is  not  under  any  obli- 
gation to  make  advances,  and  after  notice  of  a  subsequent  mort- 
gage does  make  further  advances,  to  the  extent  of  such  advances 
the  subsequent  mortgagee  has  the  right  of  precedence.^  But  if 
such  mortgagee  is  under  obligation  to  make  the  advances,  he  is 
entitled  to  the  security  whatever  may  be  the  incumbrances  subse- 
quently made  upon  the  property,  and  whether  he  has  notice  of 
them  or  not.* 

365.  Mortgages  to  secure  future  advances  have  always 
been  sanctioned  by  the  comraon  law.  —  An  early  case  is  thus 
stated  in  Viner's  Abridgment :  "  A.  mortgages  to  B.  for  a  term 
of  years  to  secure  a  certain  sum  of  money  already  lent  to  the 
mortgagor,  as  also  such  other  sums  as  should  thereafter  be  lent 
or  advanced  to  him.  Afterwards  A.  makes  a  second  mortgage 
to  C.  for  a  certain  sum,  with  notice  of  the  first  mortgage,  and 
then  the  first  mortgagee,  having  notice  of  the  second  mortgage, 
lends  a  further  sum.  The  question  was,  upon  what  terms  the 
second  mortgagee  should  be  allowed  to  redeem  the  first ;  and 
Cowper,  the  Lord  Chancellor,  held  that  he  should  not  redeem 
without  paying  all  that  was  due,  as  well  the  money  lent  after  as 
that  lent  before  the  second  mortgage  was  made;  "for  it  was  the 
folly  of  the  second  mortgagee,  with  notice,  to  take  such  a  se- 
curity." ^  This  case,  however,  was  critically  examined  by  Lord 
Chancellor  Campbell,  before  the  House  of  Lords  in  the  case  of 
IIopJcinso7i  v.  Rolt,^  and  he  declared  the  representation  made  by 

1  M'Daniels   v.    Colvin,    16    Vt.    300;  of  the   statute    of   that  state   relating  to 

Ward  V.   Cooke,   17   N.  J.  Eq.  93.     See  mortgages.     Ladue  v.  Detroit,  &c.  R.  R. 

§  371.  Co.  13  Mich.  380. 

'^  Ripley  r.  Harris,  3  Biss.  199;  Nelson  *  Sec  §  372. 

V.  Boycc,  7  J.  J.  Marsh.  (Ky.)  401  ;  Speer  5  Gordon  v.  Graham,  7  Vin.    Abr.  52, 

c.  Wliittield,  10  N.  J.  Eq.  (2  Stock.)  107  ;  pi.  3 ;  2  Eq.  Cas.  Abr.  598. 

Fiirnum  v.  Burnett,  21  N.  J.  Eq.  87  ;  Bu-  ^  9   H^J    of  Lords,   514;    7  Jur.  N.  S. 

chanan  j;.  International  Bank,  78  111.  500.  1209. 

3  Frye  u.  Bank  of  111.  11  111.  367  ;  Spa-  The   En^^lish    cases    are    carefully   re- 

dcr  V.  Lawler,  17  Ohio,  371.     This  deci-  viewed.      Rolt   v.    Hopkinson,   25   Beav. 

sion  was  based  somewhat  upon  the  effect  461. 
260 


FUTURE    ADVANCES.  [§  S66. 

the  reporters,  that  the  first  mortgagee  had  notice  of  the  second 
mortgage,  to  be  without  foundation.  The  doctrine  supposed  to 
have  been  hiid  down  in  Grordon  v.  G-raham  is  declai'ed  unsound, 
and  is  overruled  ;  and  the  doctrine  in  Enghmd  is  therefore  settled, 
that  a  first  mortgagee  cannot  chiim  the  benefit  of  the  security  for 
optional  advances  made  by  him  after  notice  of  a  second  mortgage 
upon  the  property.^  This  question  is  examined  elsewliere  ;  ^  and 
these  two  cases  are  referred  to  in  this  connection  as  the  leading 
cases  in  England  upon  the  subject,  and  as  showing  that  future  ad- 
vances may  be  secured  if  the  mortgage  be  properly  made  for  that 
purpose.^ 

In  this  country  mortgages  made  in  good  faith  for  the  purpose  of 
securing  future  debts  have  generally  been  sustained,  both  in  the 
early  and  in  the  recent  cases.'*  It  does  not  matter  that  the  future 
advances  are  to  be  made  to  a  third  person,  or  for  his  benefit  at  the 
request  of  the  mortgagor.^  Neither  is  the  validity  of  a  mortgage 
to  secure  future  advances  affected  by  the  fact  that  the  advances 
are  to  be  made  in  materials  for  building  instead  of  money .^ 

366.  Statute  requirement  that  the  amount  secured  shall  be 
stated. — In  Mar3'land  it  is  provided  by  statute '^  that  no  mort- 
gage, or  deed  in  the  nature  of  a  mortgage,  shall  be  a  lien  or  charge 
on  any  estate  or  property  for  any  otiier  or  different  principal  sum 
or  sums  of  money  tlian  aytpear  on  the  face  of  the  mortgage,  and 
are  specified  and  recited  in  it,  and  particularly  mentioned  and 
expressed  to  be  secured  thereby  at  the  time  of  executing  it.  This 
provision  is  not  however  applicable  to  mortgages  given  to  indem- 
nify the  mortgagee  against  loss  from  being  indorser  or  security. 

1  The  opinion  of  the  court  was  delivered  v.  Cunningham,  24  Pick.  (M:i«s.)  270; 
to  this  effect  by  Lords  Campbell  and  (ioddard  y.  Sawyer,  9  Allen  (Mass.),  78; 
Chelmsford  ;  but  Lord  Cranworih  gave  Truscott  v.  King,  6  N.  Y.  147  ;  James  v. 
a  dissenting  opinion,  to  the  effect  that  the  Morey,  2  Cow.  (N.  Y.)  292  ;  Brinkerhoff 
law  was  correctly  laid  down  by  Lord  Cow-  v.  Lansing,  4  Johns.  (N.  Y.)  Ch.  73  ;  Fas- 
per,  as  reported.  sett  v.  Smith,  23  N.  Y.  232  ;  Brackett  v. 

2  See  §§  368-374.  Sears,  1.5  Mich.  244  ;  Seaman  v.  Fleming, 

3  See,  also.  Burgess  v.  Eve,  L.  K.  13  7  Rich.{S.  C.)  Eq.  283  ;  Garbery.  Henry, 
Eq.  450;  Daun  v.  City  of  London  Brew-  6  Watts  (Pa.),  57. 

ery  Company,  L.  R.  8   Eq.  155;  Menzies  ^  Maffitt  v.  Rynd,  69   Pa.  St.  380,  and 

V.  Lighifoot,  L.  R.  11   Eq.  459.  cases  cited. 

*  United   States  v.  Hooe,  3  Cranch,  73 ;  "  Brooks  i-.  Lester,  36   Md.  65  ;  Doyle 

Shirras  v.  Caig,  7  Cranch,  34 ;  Leeds  v.  v.  Wiiite,  26  Me.  341. 

Cameron,  3  Sum.  488;  Commercial  Bank  "  Pub.  Lien  Laws,  1860,  art.  64,  §  2. 

261 


§  366.]  THE   DEBT    SECURED. 

A  mortgage  to  secure  future  advances  not  to  exceed  a  limited 
amount  may  be  enforced  to  the  amount  of  the  advances  made 
upon  it  within  that  limit,  although  such  advances  were  made  after 
the  mortgagee  had  received  notice  of  a  junior  incumbrance.^ 
The  statute  requiring  the  amount  to  be  stated  is  a  modification 
of  the  common  law,  under  which  the  mortgage  would  be  equally 
valid  without  such  limitation. 

In  New  Hampshire  it  is  provided  that  no  conveyance  in  writ- 
ing of  any  lands  shall  be  defeated,  nor  any  estate  incumbered  by 
any  agreement,  unless  it  is  inserted  in  the  condition  of  the  con- 
veyance and  made  a  part  thereof,  stating  the  sum  of  money  to  be 
secured,  or  other  thing  to  be  performed.  And  it  is  also  provided 
that  no  estate  conveyed  in  mortgage  shall  be  holden  by  the  mort- 
gagee for  the  payment  of  any  sum  of  money,  or  the  performance 
of  any  other  thing,  the  obligation  or  liability  to  the  payment  or 
performance  of  which  arises,  is  made,  or  contracted,  after  the  exe- 
cution and  delivery  of  such  mortgage. ^  It  is  held,  however,  that 
a  mortgage  executed  in  good  faith,  conditioned  to  secure  a  defi- 
nite sum,  part  of  the  consideration  of  which  is  the  agreement  of 
the  mortgagee  to  pay  certain  sums  to  and  for  the  use  of  the 
mortgagor,  and  to  perform  certain  labor  for  the  mortgagor,  is 
neither  prohibited  nor  fraudulent  as  against  the  creditors  of  the 
mortgagor.^  But  the  court  did  not  wish  to  be  understood  as  hold- 
ing that  a  mortgage  given  to  secure  an  absolute  note,  intended  as 
a  security  for  advances  hereafter  to  be  made,  would  be  valid,  if  at 
the  time  of  the  execution  of  the  mortgage  the  amount  of  the  ad- 
vances was  not  agreed  upon,  or  the  mortgagee  was  under  no  ob- 
ligation to  make  them.  Under  this  statute  the  mortgage  may 
be  void  as  to  the  part  of  the  consideration  which  is  altogether 
future,  but  valid  for  the  part  which  was  a  debt  at  the  time  the 
mortgage  was  executed."^ 

In  Georgia  a  mortgage  may  be  made  to  secure  future  advances 
not  limited  in  amount,^  although  the  statute  of  the  state  provides 
that  a  mortgage  shall  "  specify  the  debt  to  secure  which  it  is 


^  Wilson  V.  Russell,  13  Md.  494.  5  Allen  v.  Lathrop,  46   Ga.  133.      The 

2  Gen.  Stat.  p.  2.53,  c.  122,  §§  2  and  3.  debt  was  described  as  advances  in  supplies 
8  Stearns  v.  Bennett,  48  N.  H.  400,  402.  and  money  for  the  purpose  of  carryin-  on 
*  Leeds  V.  Cameron,  3  Sum.  488  ;  John-     the  farm  for  the  year  1870. 

fon  V.  Richardson,  38  N.  H.  353;  Bank  v. 

Willard,  ION.  H.  210. 
2t)2 


FUTURE   ADVANCES.  [§  367. 

given."  ^  So  long  as  the  means  for  determining  the  amount  of 
the  debt  are  pointed  out,  it  is  immaterial  that  the  amount  is  not 
stated,  or  is  from  its  very  nature  indefinite.^ 

• 

367.  Description  of  the  intended  advances.  —  A  mortgage 
to  secure  future  liabilities  should  describe  the  nature  or  amount  of 
them  with  reasonable  certainty.  If  the  nature  and  amount  of  the 
incumbrance  is  so  described  that  it  may  be  ascertained  by  the 
exercise  of  ordinary  discretion  and  diligence,  this  is  all  that  is 
required.^  On  this  principle  a  mortgage  for  the  payment  of  such 
sums  of  money  as  the  mortgagee  might  advance,  in  pursuance  of 
an  agreement  mentioned  in  the  condition  of  a  certain  bond  given 
by  the  mortgagee  to  the  mortgagor  of  even  date,  contains  reason- 
able notice  of  the  incumbrance.'* 

A  mortgage  for  l$200  was  executed  as  a  basis  of  credit  to  that 
extent  for  goods  which  the  mortgagee  might  sell  to  the  mort- 
gagoi*,  with  the  understanding  that  the  mortgagor  should  make 
such  payments  that  the  balance  against  him  should  at  no  time 
exceed  tiiat  amount.  An  account  was  opened  and  continued  for 
some  years.  It  was  held  that  the  condition  of  the  mortgage  was 
not  exceptionable  as  not  disclosing,  with  sufficient  certainty,  the 
nature  and  extent  of  the  incumbrance.^     When  the  condition  of 

1  Code,  §1945.  against  his  liabilities  as  surety,   because 

2  Allen  V.  Lathrop,  supra.  that  is  a  claim  not  described  in  the  mort- 

3  United  States  i\  Hooe,  3  Cranch,  73 ;  page  ;  and  the  real  nature  of  the  transac- 
Shirras  v.  Caig,  7  Cranch,  34  ;  United  tion  should  appear  in  the  condition  of  the 
States  V.  Sturges,  1  Paine,  525  ;  Hubbard  mortgage.  Sanford  v.  Wheeler,  13  Conn. 
V.  Savage,  8  Conn.  215.  This  case  did  165.  On  this  principle  the  same  court 
away  with  the  doubt  with  which  such  held,  in  North  v.  Belden,  13  Conn.  376, 
mortgages  were  spoken  of  in  the  earlier  that  a  mortgage  to  secure  a  note  of  $500, 
cases  of  Pettibone  v.  Griswold,  4  Conn,  when  in  fact  the  mortgage  was  intended 
158;  Stoughton  f.  Pasco,  5  Conn.  442;  as  security  for  such  indorsements  as  the 
Shepard  v.  Shepard,  6  Conn.  38.  mortgagee  might  make  for  the  mortgagor 

■*  Crane  v,  Beminsr,  7  Conn.  387.  to  that  amount,  and  which  were  actually 
s  Mix  u.  Cowlcs,  20  Conn.  420.  made  and  the  notes  paid  by  the  mort- 
Where  the  mortgagor,  being  insolvent,  gagee,  was  not  valid  against  subsecjuent 
made  a  mortgage  to  secure  a  note  of  incumbrance^*  And  so  a  condition  to  pay 
$2,600,  to  a  creditor  to  whom  he  was  in-  all  notes  which  the  mortgagee  might  in- 
debted in  the  sum  of  $1,.500,  and  who  was  dorse  or  jrive  for  the  mortgagor,  and  all 
surety  for  him  in  the  sum  of  $1,100  more,  receipts  which  the  mortgagee  might  hold 
the  mortgage  was  held  a  valid  security  agninst  the  mortgagor,  was  held  to  be  too 
for  the  $1,.500,  but,  as  against  the  mort-  indefinite  and  uncertain  to  make  the  mort- 
gagor's creditors,  not  for  the  part  which  gage  valid  against  subsr(juent  parties  in 
was  intended  to  indemnify  the  mortgagee  interest.      There  is  nothing  to  limit  the 

263 


§  368.]  THE   DEBT    SECURED. 

a  deed  was,  that  "  in  case  the  grantor  pays  to  the  grantee  the  sum 
of  $1,600,  with  interest,  on  or  before  the  first  of  January,  1843, 
then  this  deed  shall  be  void  and  of  no  effect,  otherwise  to  remain 
in  full  force,"  and  the  grantor  then  owed  the  grantee  about 
$1,100,  and  it  was  agreed  that  the  grantee  should  advance  him  a 
further  sum  to  make  up  the  full  amount  of  the  mortgage,  it  was 
held  that  the  condition  sufficiently  described  the  nature  and  char-  . 
acter  of  the  indebtedness  to  be  secured,  to  constitute  a  valid 
securit}'^  against  subsequent  incumbrances.^ 

A  mortgage  conditioned  for  the  payment  of  all  sums  due  and 
to  become  due  is  sufficiently  certain. ^  So  is  a  mortgage  "to 
secure  all  past  indebtedness  due  and  owing  "  from  the  mortgagor 
to  the  mortgagee.^  A  mortgage  conditioned  to  pay  the  mort- 
gagee "  what  I  may  owe  him  on  book"  was  construed  to  refer  to 
future  accruing  accounts,  upon  its  appearing  that  there  was  no 
account  subsisting  between  the  parties  when  the  mortgage  was 
given.*  Upon  its  appearing  that  the  mortgage  was  given  in  part 
to  cover  future  advances,  the  burden  is  upon  the  mortgagee  to 
show  what  advances  have  been  made.^ 

368.  Advances  after  notice  of  subsequent  liens.  —  A  subse- 
quent mortgage  upon  the  same  premises  for  an  existing  debt  is 
entitled  to  precedence  of  advances  made  by  a  prior  mortgagee  with 
notice  of  the  second.^  As  will  be  presently  noticed,  this  general 
proposition  is  subject  to  qualifications  ;  but  whenever  a  subse- 
quent mortgage  has  precedence,  as  a  general  rule  a  subsequent 
judgment  has  precedence  under  like  circurnstances  ; "  but  a  mort- 
gage for  future  unlimited  advances  is  good  against  all  advances 
made  before  recovery  of  the  judgment.'^  Advances  covered  by  a 
mortgage  have  preference  to  the  claims  of  junior  incumbrancers, 

liability,  or  to  give   others  the  means  of        *  McDaniels  v.  Colvin,  16  Vt.  300. 
finding  out  the  extent  of  it.     Pettihone  v.         ^  Fisher  v.  Otis,  3  Chand.  (Wis.)  83. 
Gris\vold,4  Conn.  158.  «  Frye  v.  Bk.  of  111.  11  111.  307;  Spader 

These  cases,   however,  are    questioned,  v.  Lawler,  17  Ohio,  371  ;  Hughes  v.  Wor- 

and  in  effect  overruled,  in  later  decisions  ley,  1    Bibb  (Ky.),  200;  Bell  v.  Fleming, 

in  Connecticut,  and  are   without   general  12  N.  J.  Eq.  (I   Beas.)  13,  490. 
support  elsewhere.  ^  Brinkerhoff  v.  Marvin,   5  Johns.  (N. 

1  Bacon  v.  Brown,  19  Conn.  29.  Y.)   Ch.  320  ;  Craig  v.  Tappin,  2  Sandf. 

2  Insurance  Co.  v.  Brown,  11  Midi.  (N.  Y.)  Ch.  78;  Yelverton  v.  Slielden, 
266.  lb.  481  ;  Goodhue  v.  Berrien,  lb.  630. 

3  Machcttc  V.  Wanless,  1  Colo.  225.  »  RobJuson  v.  Williams,  22  N.  Y.  380. 

264 


FUTURE   ADVANCES.  [§  369. 

who  have  become  such  with  notice  of  an   agreement  under  the 
mortgage  for  the  advances.^ 

369.  When  mortgagee  is  not  bound  to  make  the  advances. 
Mortgages  to  secure  future  advances  or  Habihties  ai'e  valid  and 
fixed  securities  against  subsequent  purchasers,  or  attaching  cred- 
itors of  the  mortgagor,  although  the  advances  are  made  or  the 
liabilities  assumed  after  the  record  of  such  later  deeds  or  attach- 
ments ;  and  although  it  is  optional  with  the  mortgagee  whether 
he  will  make  such  advancements  or  assume  such  liabilities  or  not, 
if  they  are  made  or  assumed  in  good  faith,  and  without  notice 
of  any  subsequent  intervening  incumbrance.^  But  where  the 
mortgagee  is  not  hound  to  make  the  advances  or  assume  the  lia- 
bilities, and  he  has  actual  notice  of  a  later  incumbrance  upon  the 
property  for  an  existing  debt  or  liability,  such  later  incumbrance 
will  take  precedence  of  the  mortgage  as  to  all  advances  made 
after  such  notice. ^  Whether  constructive  notice  by  the  record  of 
the  later  incumbrance  should  have  the  same  effect  as  actual  notice, 
and  whether  the  ojation  of  the  mortgagee  to  make  the  advances 
should  operate  to  give  the  mortgage  effect  as  to  subsequent  in- 
cumbrances only  from  the  time  the  advances  are  in  fact  made, 
are  questions  upon  which  the  cases  are  not  agreed.  A  mortgage 
was  made  to  secure  the  mortgagee  for  his  liability  as  indorser  of 
such  notes  as  the  mortgagor  might  desire  him  to  indorse  within  a 
certain  time  and  amount,  and  at  his  option  to  do  so.  A  second 
mortgage  in  similar  terms  was  made  to  another  indorser.  It  was 
held  that  the  first  mortgagee  for  such  indorsements  as  he  made 
after  actual  notice  of  the  incumbrance  of  the  second  mortgage, 
and  of  the  indorsements  made  under  the  security  of  it,  should  be 
postponed  to  such  claims  under  the  second  mortgage.^  The  prin- 
ciple of  the  decision  is,  that  the  mortgagee  not  being  hound  by 
his  contract  to  make  the  indorsements  or  future  advances,  the 
equity  of  a  junior  incumbrancer  for  an  existing  debt,  or  of  an 
attaching  creditor,  will  intervene  and  take  precedence  of  any 
advances   made   or   liabilities   incurred  after  actual   notice  of  the 

1  Kramer  i-.   Bank  of   Steubenvillc,  15  Ins.  Co.  1  Peters,  .386  ;  Tniscott  v.  King, 

Ohio,   253;    Tniscott   v.  King,    6    N.   Y.  6  Barb.  (X.  Y.)  346. 

147.  3  Boswell   v.  Goodwin,   31    Conn.    74; 

-  Crane  v.  Doming,  7  Conn.  387  ;  Me-  Ladue  v.  Detroit  &  Milwaukee  R.  Co.  13 

Daniels  v.  Colvin,  16  Vt.  300  ;  Sliirras  v.  Mich.  380,  and  cases  cited. 

Caig,   7  Cranch,  34;  Conard  v.  Atlantic  *  BoswelU'.  Goodwin,  31  Conn.  74. 

265 


§  370.] 


THE   DEBT    SECURED. 


subsequent  lien.  Sucli  junior  incumbrancer  or  creditor  acquires  a 
lien  upon  the  property  as  it  then  is  ;  and  as  it  is  optional  with  the 
prior  mortgagee  whether  he  will  advance  or  indorse  any  further, 
he  is  not  allowed  knowingly  to  prejudice  the  rights  of  subse- 
quent incumbrancers,  or  destroy  their  lien,  by  adding  voluntarily 
to  his  own  incumbrance.  They  have  an  equity  superior  to  his 
right  to  make  further  advances.^ 


370.  A  mortgage  for  obligatory  advances  is  a  lien  from  its 
execution.  —  If  by  the  terms  of  the  mortgage  an  obligation  is 
imposed  upon  the  mortgagee  to  make  the  advances,  the  mortgage 
will  remain  security  for  all  the  advances  he  is  required  to  make, 
although  other  incumbrances  may  be  put  upon  the  property  be- 
fore they  are  made,  and  he  has  knowledge  of  such  incumbrances. ^ 
Thus,  where  a  railroad  company  made  a  mortgage  to  a  trustee 
upon  all  its  property  then  owned,  or  afterwards  to  be  acquired, 
to  secure  bonds  which  the  company  had  agreed  to  issue  to  a  con- 
tractor, in  part  payment  for  the  building  of  its  road,  it  was  held 
that  the  mortgage  took  precedence  of  a  lien  for  material  after- 
wards furnished  the  company,  and  used  upon  the  road,  although 

1  A  dissenting'  opinion  was  given  in  tlie  mortgages  of  that  character  upon  the  same 
case  of  Boswell  v.  Goodwin,  by  Butler,  J.,  projjerty  will  be  practically  impossible, 
on  the  ground  that  "  where,  as  in  this  case.  There  must  be  either  inquiry  or  notice, 
neither  the  prior  nor  junior  incumbrance  back  and  forth  at  each  advance,  for  par- 
is  taken  for  an  existing  debt,  but  both  ticulars  of  the  new  debts  or  new  mortgages; 
are  taken  for  the  security  of  advances  to  and,  upon  principle,  that  notice  should  be 
be  made,  and  are  in  all  respects  similar  in  filed  in  the  records  with  the  original 
character  and  purpose,  there  is  nothing  to  mortgage,  or  actually  given, 
create  a  superior  equity  in  the  junior  in-  "  In  case  of  a  mortgage  to  secure  future 
cumhrancer;  and  the  equitable  princijjle,  advances,  it  is  going  a  great  way,  in  view 
that  he  who  is  first  in  time  is  first  in  right,  of  the  authorities,  but  perhaps  it  is  strictly 
should  he  applied,  and  the  prior  mortgagee  eciuitable,  that  he  should  be  held  to  con- 
may  fulfil  his  contract  without  regard  to  strnctive  notice  of  a  subsequent  mortgage 
the    subsequent  mortgage.  in  favor  of  a  creditor  who  acquires  by  a 

"Contracts  for  fnture  credit,  assistance,  mortgage  an  equity  superior  to  his  sub- 

or  advances,  are  very  common  and  impor-  sequent  advances,  because  as  to  them  such 

tant.     They  should  yield  to  the  rights  of  junior  mortgage  is  superior,  and  therefore 

creditors,  but  they  should  not  thus   be  in-  prior  in  equity." 

terfercd  with   by  a  contracting  party,  or  2  Nelson  v.  Iowa  Eastern  R.  Co.  8  Am. 

Hny  stranger  who  is  not  a  creditor.  Railroad  Rep.  82  ;  Moroney's  Appeal   24 

"  If  the  principle  is  adopted  in  all  cases,  Pa,   St.   372;    Lyle  i;.  Ducomb,   5    Binn. 

that  each  successive  indorsement  or  each  (Pa.)  585;  Wilson  u.  Russell,  13  Md.495; 

successive  advance  is  a  new  debt  or  lia-  Grifiin  v.  Burtnett,  4  Edw.  (N.   Y.)  Ch. 

bility,   and   a    new  mortgage,   coexisting  673 ;  Crane  v.  Deming,  7  Conn.  387. 

266 


FUTURE   ADVANCES.  [§  371. 

the  advances  were  made  after  notice  of  the  material-man's  chiim 
of  a  lien,^ 

371.  Hopkinson  v.  Rolt.^  —  The  question  in  this  case  was 
accurately  and  tersely  stated  by  Lord  Chancellor  Chelmsford  in 
the  judgment  appealed  from :  "A  prior  mortgage  for  present  and 
future  advances  ;  a  subsequent  mortgage  of  the  same  description  ; 
each  mortgagee  has  notice  of  the  other's  deeds;  advances  are  made 
by  the  prior  mortgagee  after  the  date  of  the  subsequent  mortgage, 
and  with  full  knowledge  of  it :  is  the  prior  mortgagee  entitled  to 
priority  for  these  advances  over  the  antecedent  advance  made  by 
the  subsequent  mortgagee?"  In  Gordon  \.  (xraAa?/?,^  this  question 
was  answered  afhrmatively  ;  but  the  House  of  Lords  overruled 
this  case,  and  answered  the  question  in  the  negative.*  Lord  Chan- 
cellor Campbell  forcibly  presents  the  argument  for  this  view  of 
the  question.  "  The  first  mortgagee  is  secure  as  to  past  advances, 
and  lur  is  not  under  any  obligation  to  make  any  further  advances. 
He  has  only  to  hold  his  hand  when  asked  for  a  further  loan. 
Knowing  the  extent  of  the  second  mortgage,  he  may  calculate 
that  the  hereditaments  mortgaged  are  an  ample  security  to  the 
mortgagees  ;  and  if  he  doubts  this,  he  closes  his  account  with  the 
mortgagor,  and  looks  out  for  a  better  security.     The  benefit  of 

1  Nelson  v.  Iowa  Eastern  R.  Co.  siijira.  rity,  he  lias  notliinp;  to  complain  of.     He 

■■^  9  Ho.  Lords,  514.  is  aware,  when  he  advances  his  money,  of 

3     See  §  365.     This  tlecision  had  pre-  the  imperfect  nature  of  his  security,  and 

viously  been  questioned  by  Mr.  Coventry,     acts  at  his  peril 

in  a  note  to  Powell  on  Mortg.  .534,  note  "  Considerin<r,  then,  the  state  of  the  au- 
(e),  and  by  Lord  St.  Leonards,  2  Dru.  &  thorities  on  this  subject,  and  the  opinions 
War.  431  ;  6  H.  L.  C.  597.  of  eminent  conveyancers,  I  have  come  to 
*  Lord  Cranworth  delivered  a  dissent-  the  conclusion  that  the  law  was  correctly 
ing  opinion,  supjjorting  the  view  taken  of  laid  down  ])y  Lord  Cowper.  The  rule 
the  law  by  Lord  Cowper,  in  Gordon  v.  projiounded  by  him  is  a  convenient  rule, 
Graham.  causing  injustice  to  no  one.  It  has,  prob- 
"  Mortgages  are  but  contracts,"  he  ably,  been  often  acted  on.^nd  to  depart 
said,  "  and  when  once  the  rights  of  parties  from  it  may,  I  think,  retrospectively  cause 
under  them  are  defined  and  understood,  great  injustice,  and  prospectively  prevent 
it  is  impossible  to  say  that  any  rule  regu-  advances  of  money  by  bankers  or  others, 
lating  their  priority  is  unjust.  If  the  law  where  such  advances  might  be  safely  and 
is  once  laid  down  and  understood,  that  a  usefully  made,  and  where,  as  in  this  case, 
person  advancing  money  on  a  second  the  second  mortgage  is,  like  the  first,  a 
mortgage,  with  notice  of  a  prior  mort-  security  for  future  as  well  as  present  ad- 
gage  covering  future  as  well  as  present  vances,  great  difficulty  must  arise  in  set- 
debts,  will  be  postponed  to  the  first  mort-  tling  the  jjriorities  of  the  two  mortgages  in 
gagee,  to  the  whole  extent  covered  or  ca-  respect  to  future  advances." 
pable  of  being  covered  by  the  prior  secu- 

267 


§  372.]  THE   DEBT    SECURED. 

the  first  mortgage  is  only  lessened  by  the  amount  of  any  interest 
which  the  mortgagor  afterwards  conveys  to  another,  consistent 
with  the  rights  of  the  first  mortgagee.  Thus  far  the  mortgagor 
is  entitled  to  do  what  he  pleases  with  his  own.  The  consequence 
certainly  is,  that  after  executing  such  a  mortgage  as  we  are  con- 
sidering, the  mortgagor,  by  executing  another  such  mortgage,  and 
giving  notice  of  it  to  the  first  mortgagee,  may  at  any  time  give  a 
preference  to  the  second  mortgagee,  as  to  subsequent  advances, 
and,  as  to  such  advances,  reduce  the  first  mortgagee  to  the  rank 
of  puisne  incumbrancer.  But  the  first  mortgagee  will  have  no 
reason  to  complain,  knowing  that  this  is  his  true  position,  if  he 
chooses  voluntarily  to  make  farther  advances  to  the  mortgagor. 
The  second  mortgagee  cannot  be  charged  with  any  fraud  upon 
the  first  mortgagee,  in  making  the  advances,  with  notice  of  the 
first  mortgage  ;  for,  by  the  hypothesis,  each  has  notice  of  the 
security  of  the  other,  and  the  first  mortgagee  is  left  in  full  pos- 
session, of  his  option  to  make  or  to  refuse  farther  advances  as  he 
may  deem  it  prudent.  The  hardship  upon  bankers  from  this  view 
of  the  subject  at  once  vanishes,  when  we  consider  that  the  security 
of  the  first  mortgage  is  not  impaired  without  notice  of  a  second, 
and  that  when  this  notice  comes,  the  bankers  have  only  to  con- 
sider, as  they  do,  as  often  as  they  discount  a  bill  of  exchange, 
what  is  the  credit  of  their  customer,  and  whether  the  proposed 
transaction  is  likely  to  lead  to  profit  or  to  loss." 

372.  A  prior  mortgagee  is  affected  only  by  actual  notice  of 
a  subsequent  mortgage,  and  not  by  consti'uctive  notice  from  the 
recording  of  the  second  mortgage.  Such,  it  is  conceived,  is  the 
rule,  supported  by  reason  and  the  weight  of  authority. ^  It  is  else- 
where observed  that  the  recording  acts  give  notice  to  subsequent 
purchasers  and  incumbrancers,  and  do  not  affect  those  whose 
rights  are  already  fixed  by  the  previous  record  of  their  own  deeds.^ 

1  Collins  V.  Carlile,  13  111.254  ;  Rowan  Reg.  N.  S.  273,  by  the  learned  editor,  who 

V.    ShMrps    Man.    Co.    29     Conn.     282 ;  in    conclusion  rernai'ks :    "  So  far  as  we 

McDunicls  v.  Colvin,  16   Vt.  300;  True-  may  venture  a  personal  opinion,  therefore, 

scott  V.  Kiii-r,  6  Barb.  (N.  Y.)   346  ;  G   N.  wo  think  the  rule  that  tlic  recording  of  the 

Y.  166;  IJobinson  v.  Williams,  22  N.  Y.  second  mortgage  is  not  notice  to  the  first 

380;  Ward  v.  Cooke,   17  N.  J.   Eq.  93;  mortLagor  is  sufiported  by  the  better  rea- 

Wilson  V.  Russell,  13  Md.  495;-  Nelson  v.  sons,  and   tliat  the  weight   of  authority  is 

Boycc,  7  J.  J.  Marsh.  (Ky.)  401.  still  in  its  favor,  though  we  are  bound  to 

'^See  chapter  xi.  on  "  Registration."  concede  that  of  late  there  is  an  apparent 

See  article  on  this  subject  11   Am.  Law  tendency  to  the  opposite  rule." 

268 


FUTURE   ADVANCES.  [§  372. 

Whether  the  mortgage  intended  to  secure  future  advances  dis-. 
closes  the  nature  of  the  transaction  or  not,  there  is  no  good  reason 
why  it  shoukl  not  remain  a  valid  security  for  all  advances  that 
may  be  made,  until  the  mortgagee  receives  actual  notice  of  subse- 
quent claims  upon  the  property.  The  burden  of  ascertaining  the 
amount  of  an  existing  incumbrance  should  rest  upon  him  who 
takes  a  conveyance  of  the  property  sul)ject  to  the  mortgage.  He 
has  notice  by  the  record  of  the  existence  of  a  mortgage  for  the 
full  amount  of  the  intended  advances;  and  if  he  wislies  to  stop 
the  advances  where  tliey  are  at  the  time  of  recording  his  subse- 
quent deed,  it  is  only  reasonable  to  require  him  to  give  actual 
notice  of  his  claim  upon  the  property  ;  otherwise  he  should  not  be 
beard  to  complain  that  the  prior  incumbrance  amounts  at  any 
future  time  to  the  full  sum  for  which  it  appeared  of  record  to  be 
an  incumbrance.  Nevertheless,  there  are  some  authorities  to  the 
effect  that  the  first  mortgagee  has  constructive  notice  of  the  sec- 
ond mortgage  from  the  record  of  it.^  This  position  is  supported 
by  Mr.  Justice  Christiancy,  of  Michigan,  in  an  elaborate  opinion, 
in  which  a  mortgage  for  future  optional  advances  is  treated  as 
effectual  only  from  the  time  the  advances  are  actually  made.^ 
"  The  instrument  can  only  take  effect  as  a  mortgage  or  incum- 
brance from  the  time  when  some  debt  or  liability  shall  be  created, 
or  some  binding  contract  is  made,  which  is  to  be  secured  by  it. 
Until  this  takes  place^  neither  the  land,  nor  tlie  parties,  nor  third 
persons,  are  bound  by  it.  It  constitutes,  of  itself,  no  binding  con- 
tract. Either  party  may  disregard  or  repudiate  it  at  his  pleasure. 
It  is  but  a  part  of  an  arrangement  merely  contemplated  as  proba- 
ble, and  which  can  only  be  rendered  effectual  by  the  future  c(m- 
sent  and  further  acts  of  the  parties.  It  is  but  a  kind  of  condi- 
tional proposition,  neither  binding  nor  intended  to  bind  eithe  ■  of 
the  parties,  till  subsequently  assented  to  or  adopted  by  both." 

As  to  the  inconvenience  which  is  supposed  to  result  to  the  first 
mortgagee  by  requiring  him  to  examine  the  record  everj'-  time  he 
makes  advances  upon  such  a  mortgage,  the  learned  judge  says  : 
"  It  is,  at  most,  but  the  same  inconvenience  to  which  all  other 

1  Spader  v.  Lawler,  17   Ohio,  371,  by  not  decided   in  Boswell    v.   Goodwin,  31 

a  divided    court;   Bank  of  Montgomery  Conu.  74 ;  12  Am.  Law  Reg.  79,  note  by 

County's  Appeal,  36  Pa.  St.   170;  S.  C.  Judge  Redfield.    And  see  11  lb.  1. 

sub   nomine   Parker    v.   Jacoby,  3    Grant  -  Ladue  y.  Detroit  &  Milwaukee  R.  Co. 

(Pa.),  300;   Ter-IIoven   v.  Kerns,  2   Pa.  13  Mich.  380  ;  many  cases  are  cited  anl 

St.  96.     This  question  was  discussed  but  discussed. 

269 


§  373.] 


THE   DEBT    SECURED. 


parties  are  compelled  to  submit  when  they  lend  money  on  the  se- 
curity of  real  estate  —  the  trouble  of  looking  to  the  value  of  the 
security.  But,  in  truth,  the  inconvenience  is  very  slight.  Under 
any  rule  of  decision  they  would  be  compelled  to  look  to  the  record 
title,  when  the  mortgage  is  originally  taken.  At  the  next  ad- 
vance they  have  onlj?"  to  look  back  to  this  period ;  and  for  any 
future  advance,  only  back  to  the  last,  which  would  generally  be 
but  the  work  of  a  few  minutes,  and  much  less  inconvenience  than 
they  have  to  submit  to  in  their  ordinary  daily  business  in  making 
inquiries  as  to  the  responsibility,  the  signatures,  and  identity  of 
the  parties  to  commercial  paper.  But  if  there  be  any  hardship, 
it  is  one  which  they  can  readily  overcome,  by  agreeing  to  make 
the  advances  ;  in  other  words,  by  entering  into  some  contract,  for 
the  performance  of  which,  by  the  other  party,  the  mortgage  may 
operate  as  a  security.  They  can  hardly  be  heard  to  complain  of 
it  as  a  hardship  that  the  courts  refuse  to  give  them  the  benefits  of  a 
contract  which,  from  prudential  or  other  considerations,  they  were 
unwilling  to  make,  and  did  not  make  until  after  the  rights  of  other 
parties  have  intervened.  Courts  can  give  effect  only  to  the  con- 
tracts the  parties  have  made,  and  from  the  time  they  took  effect." 
When  there  is  no  obligation  upon  the  mortgagee  to  make  the 
advances,  and  the  amount  of  them  and  the  times  when  they  are 
to  be  made  are  not  agreed  upon,  some  authorities  hold  that  the 
mortgage  is  a  lien  as  against  intervening  incumbrances,  only 
from  the  time  the  advances  upon  it  are  made,  and  not  from 
the  time  of  the  execution  of  the  mortgage.  This  was  the  deci- 
sion with  reference  to  a  mortgage  given  to  secure  the  payment  of 
notes  and  bills  to  be  discounted  for  the  mortgagor,  and  for  all 
liabilities  of  every  kind  he  might  be  under  to  the  mortgagee.^ 
When  a  mortgage  is  given  to  secure  future  accommodation  in- 
dorsements, the  amount  of  which  is  wholly  undefined,  a  subse- 
quent mortgage  or  deed  taken  in  good  faith  is  held  to  have 
precedence  as  to  any  indorsements  made  afterwards.^ 

373.  Rule  that  a  mortgage  for  definite  advances  has  prior- 
ity in  all  cases. — Notwithstanding  all  the  distinctions  and  re- 
finements which  have  been  introduced  into  the  law  of  this  subject 

1  Bank  of  Montgomery's  Appeal,  36  Pa.        ^  Bibcock  v.  Bridge,  29   Barb.  (N.  Y.) 
St.  170 ;  McClnrc  v.  Roman,  52  lb.  458 ;     427. 
Parker  v.  Jacoby,    3    Grant    (Pa.),   300. 

270 


FUTURE   ADVANCES.  [§  373. 

by  the  many  conflicting  ad  judications  upon  it,  there  is  strong  rea- 
son and  authority  lor  the  rule,  that  a  mortgage  to  secure  future 
advances,  which  on  its  face  gives  information  enough  as  to  the  ex- 
tent and  purpose  of  the  contract,  so  that  any  one  interested  may 
by  ordinary  diligence  ascertain  the  extent  of  the  incumbrance, 
whether  the  extent  of  the  contemplated  advances  be  limited  or 
not,  and  whether  the  mortgagee  be  bound  to  make  the  advances 
or  not,  will  prevail  over  tlie  supervening  claims  of  purchasers  or 
creditors,  as  to  all  advances  made  within  the  terms  of  such  mort- 
gage, whether  made  before  or  after  the  claims  of  such  purchasers 
or  creditors  arose,  or  before  or  after  the  mortgngee  had  notice  of 
them.  If  the  mortgage  contains  enough  to  show  a  contract  be- 
tween the  parties,  that  it  is  to  stand  as  a  security  to  the  mort- 
gagee for  such  indebtedness  as  may  arise  from  the  future  dealings 
between  the  parties,  it  is  sufficient  to  put  a  purchaser  or  incum- 
brancer on  inquiry,  and  if  he  fails  to  make  it  he  is  not  entitled 
to  protection  as  a  bond  fide  purchaser.  Such  a  mortgage  is  con- 
sidered as  good  against  subsequent  incumbrances  to  the  full  amount 
of  the  advances  provided  for,  and  the  mortgagee  is  held  to  have 
a  right  to  rely  upon  it,  and  to  make  such  advances  without  regard 
to  what  other  incumbrances  may  afterwards  have  been  put  upon 
the  property. 

This  view  of  the  doctrine  of  mortgages  to  secure  future  ad- 
vances is  strongly  expressed  by  Mr.  Justice  Campbell  in  a  recent 
case  in  Mississippi. ^  He  says  :  "  There  has  been  much  diversity 
of  views  between  courts  and  law  writers  on  the  question  of  the 
validity  of  mortgages  for  future  advances,  and  the  rights  of  mort- 
gagees in  such  mortgages  as  against  purchasers  and  junior  in- 
cumbrances of  the  mortgaged  property.  Some  have  held,  that  a 
mortgage  which  does  not  specify  that  for  which  it  is  given  so  dis- 
tinctly as  to  give  definite  information  on  the  face  of  the  mortgage 
of  what  it  secures,  so  as  to  render  it  unnecessary  for  the  inquirer 
to  look  beyond  the  mortgage  and  seek  information  aliunde,  is 
void  as  against  creditors  and  purchasers.  Others  have  held  that 
a  mortgage  for  future  advances  is  valid  as  to  all  advances  made 
under  it,  before  notice  by  the  mortgagee  of  the  supervening  rights 
of  purchasers  or  incumbrancers.  Others  have  announced  that  a 
mortgage  for  future  advances  to  be  made,  or  liability  to  be  in- 
curred, when  duly  recorded,  is  valid  as  a  security  for  indebtedness 
1  Witczinski  v.  Everman,  51  Miss.  841-845. 

271 


§  373.]  THE   DEBT   SECURED. 

incurred  under  it,  in  accordance  with  its  terms.  There  have  been 
suggested  modifications  of  these  views,  and  a  distinction  has  been 
drawn  between  mortgages  in  which  the  mortgagee  is  obligated  to 
advance  a  given  sum,  and  those  in  which  he  is  not  so  bound.  We 
decline  to  follow  the  devious  ways  to  which  we  are  pointed  by 
conflicting  adjudications  and  suggestions,  and  prefer  to  pursue 
the  plain  path  in  which  principle  directs  us,  and  will  declare 
the  rule  to  be  observed  in  the  courts  of  this  state  on  the  sub- 
ject under  consideration,  which,  strangely  enough,  has  not  been 
heretofore  decided  in  this  state.  A  mortgage  to  secure  future 
advances,  which  on  its  face  gives  information  as  to  the'  extent 
and  purpose  of  the  contract,  so  that  a  purchaser  or  junior  creditor 
may,  by  an  inspection  of  the  record,  and  by  ordinary  diligence 
and  common  prudence,  ascertain  the  extent  of  the  incumbrance, 
will  prevail  over  the  supervening  claim  of  such  purchaser  or  cred- 
itor as  to  all  advances  made  by  the  mortgagee  within  the  terms  of 
such  mortgage,  whether  made  before  or  after  the  claim  of  such 
purchaser  or  creditor  arose.  It  is  not  necessary  for  a  mortgage 
for  future  advances  to  specify  any  particular  or  definite  sum  which 
it  is  to  secure.  It  is  not  necessary  for  it  to  be  so  completely  cer- 
tain as  to  preclude  the  necessity  of  all  extraneous  inquiry.  If  it 
contains  enough  to  show  a  contract  that  it  is  to  stand  as  a  security 
to  the  mortgagee  for  such  indebtedness  as  may  arise  from  future 
dealings  between  the  parties,  it  is  sufficient  to  put  a  purchaser  or 
incumbrancer  on  inquiry,  and  if  he  fails  to  make  it  in  the  proper 
quarter,  he  cannot  claim  protection  as  a  bond  fide  purchaser.  The 
law  requires  mortgages  to  be  recorded  for  the  protection  of  cred- 
itors and  purchasers.  When  recorded,  a  mortgage  is  notice  of  its 
contents.  If  it  gives  information  that  it  is  to  stand  as  security 
for  all  future  indebtedness  to  accrue  from  the  mortgagor  to  the 
mortgagee,  a  person  examining  the  record  is  put  upon  inquiry  as 
to  the  state  of  dealings  between  the  parties,  and  the  amount  of 
indebtedness  covered  by  the  mortgage,  and  is  duly  advised  of  the 
right  of  the  mortgagee  by  the  terms  of  the  mortgage  to  hold  the 
mortgaged  property  as  security  to  him  for  such  indebtedness  as 
may  accrue  to  him.  Thus  informed,  it  is  the  folly  of  any  one  to 
buy  the  mortgaged  property,  or  take  a  mortgage  on  it,  or  give 
credit  on  it;  and  if  he  does  so,  his  claim  must  be  subordinated  to 
the  paramount  right  of  the  senior  mortgagee,'  who  in  thus  secur- 
ing himself  by  mortgage,  and  filing  it  for  record,  as  required  by 
272 


FUTURE   ADVANCES.  [§§  374,  375, 

law,  has  advertised  the  world  of  his  paramount  claim  on  the 
property  covered  by  his  mortgage,  and  is  entitled  to  advance 
money  and  extend  credit  according  to  the  terms  of  liis  contract 
thus  made  with  the  mortgagor,  who  cannot  complain,  for  such  is 
his  contract ;  and  third  persons  afterwards  dealing  with  him  can- 
not be  heard  to  complain,  for  they  are  affected  with  full  notice, 
by  the  record,  of  what  has  been  agreed  on  by  the  mortgagor  and 
mortgagee." 

374.  It  is  not  necessary  that  the  mortgage  should  express 
on  its  face  that  it  is  given  to  secure  future  advances.  It  may  be 
given  for  a  specific  sum,  and  it  will  then  be  security  for  a  debt  to 
that  amount.^  This  definite  sum  will  then  limit  the  extent  of  the 
lien.  There  must  be  some  limit  to  the  amount  which  the  mort- 
gage is  to  secure,  either  by  express  limitation,  or  by  stating  gen- 
erally the  object  of  the  security.  If  the  limit  be  not  defined  in 
any  way,  it  can  be  good  only  for  the  advances  made  at  the  time, 
and  such  others  as  may  afterwards  be  made  before  any  other  in- 
cumbrances are  made  upon  the  property  mortgaged.^  The  sum 
expressed  by  the  mortgage  may  cover  a  present  indebtedness  as 
well  as  future  advances,  and  it  is  not  necessai-y  that  the  one 
should  be  separated  from  the  other  on  the  face  of  the  mortgage. ^ 

An  absolute  conveyance  may  be  used  to  secure  future  advances, 
or  to  secure  an  existing  debt,  and  also  future  advances.  The 
agreement  to  reconvey  when  the  advances  are  repaid  is  sufficient, 
although  it  exists  in  parol  only.^ 

375.  A  verbal  agreement  for  advances  is  sufficient.  —  The 
agreement  under  which  advances  to  a  certain  amount  are  to  be 
made  need  not  be  in  writing,  to  be  binding  and  effectual  against 
subsequent  liens :  thus,  if  a  mortgage  is  made   to   secure  futui'e 

1  Collins  V.  Carlile,    13  111.  254  ;  Bank  ^  Robinson  v.  Williams,  22  N.  Y.  380; 
of  Utica  r.  Finch,  3   Barb.    (N.   Y.)    Ch.  Fassett  t-.  Smith,  23  N.  Y.  252. 
293;  Murray  v.  Barney,  34  Barb.  (N.  Y.)  3  Xiilly  v.  Harloe,  35  Cal.  302;    Sura- 
336  ;  Craig  v.  Tappin,  2  Sandf.  (N.  Y.)  Ch.  mers  v.  Roos,  42  Miss.  749. 
78;  Wescott  v.   Gunn,  4  Duer   (N.  Y.),  *  Harper's  Appeal,  64  Penn.  St.  315; 
107 ;  Walker  v.  Sncdiker,  Hoff.  (N.  Y.)  S.  C.   7  Phila.  276  ;  Rhines  v.  Baird,  41 
Ch.    145;    Townsend    v.   Empire    Stone  lb.   256;  Kelluni   v.  Smith,  33   lb.   158; 
Dressing  Co.  6  Duer  (N.  Y.),  208;  Foster  Fessler's   Appeal,    75    lb.    483;    Myers's 
V.  Reynolds,  38  Mo.  553;  Griffin  v.  New  Appeal,  42  lb.  518.     See,  however,  Metro- 
Jersey,  &c.  Co.   11    N.  J.  Eq.   (3  Stock.)  politan  Bank  v.  Godfrey,  23  111.  579. 
49. 

VOL.  1.                           18  273 


§§  376,  377.]  THE  DEBT  SECURED. 

advances  to  be  used  in  the  construction  of  a  building  on  the  mort- 
gaged land,  and  a  mortgage  for  the  contemplated  amount  is  made 
and  recorded,  it  has  priority  against  a  mechanic's  lien  for  materials 
furnished  in  the  construction  of  such  building  to  the  full  amount 
of  the  mortgage,  if  the  advances  are  actually  made  to  that  amount, 
although  the  agreement  under  which  they  are  made  is  verbal 
only.^  If  such  agreement  be  in  writing  it  is  not  necessary  that 
it  should  appear  of  record.^ 

376.  The  amounts  and  times  of  the  advances  may  be 
sho"wn  by  parol.  —  The  omission  to  state  on  the  face  of  the  mort- 
gage the  time  when  the  first  advances  are  to  be  made  is  not  ma- 
terial. It  is  sufficient  that  they  are  to  be  made  from  time  to  time, 
as  the  mortgagor  may  desire,  during  a  specified  period.^  The 
amounts  of  the  several  advances,  and  the  times  when  they  were 
actually  made,  may  be  shown  by  extrinsic  proof,  for  in  such  case 
the  proof  does  not  contradict  the  mortgage,  or  alter  its  legal  opera- 
tion and  effect  in  any  way.  Although  the  deed  purports  to  be  in 
consideration  of  a  definite  sum  in  hand  paid  at  the  time,  it  may 
be  shown  by  parol  evidence  that  the  deed  was  made  to  secure  ad- 
vances made  and  to  be  made  to  that  extent.'* 

When  a  mortgage  has  been  given  in  terms  to  secure  future  ad- 
vances and  acceptances,  and  the  mortgagee  in  a  suit  to  enforce 
the  mortgage  produces  drafts  of  the  mortgagor  upon  him,  there  is 
no  presumption  that  the  drafts  were  drawn  against  funds  of  the 
drawer,  but  the  burden  is  upon  the  mortgagor  to  show  this  if  he 
makes  the  claim. ^ 

377.  Limitations  of  the  security  must  be  observed.  —  Al- 
though, as  already  seen,  a  mortgage  made  in  good  faith  to  secure 
future  debts  expected  to  be  contracted,  or  advances  to  be  made,, 
in  the  course  of  dealing  between  the  parties,  is  a  good  and  valid 

1  Piatt   V.  Griffith,  27    N.   J.   Eq.    207.  2  Taylor?;.  Cornelius,  60  Pa.  St.   187; 

The   court,  citing   Moroney's  Appeal,  24  Moroney's  Appeal,  24  lb.  372 ;  Thomas 

Pa.  St.  372;  Taylor  v.  La  Bar,  25  N.  J.  v.  Davis,  3  Phila.  (Pa.)  171. 

Eq.  222;  Macintosh  r.  Thurston,  lb.  242,  3  Wilson  v.  Russell,  13   Md.  494;  and 

remark  that  in  each  of  these  cases  there  see  Ahern  v.  White,  39  Md.  409. 

was  a  written  agreement  on  the  part  of  the  *  Foster  v.  Reynolds,  38  Mo.  553  ;  Cole 

mortgagee   binding  him    to   furnish    the  r.  Runge  Gill  (Md.),  412. 

money,  but  regard  this  circumstance  as  of  ^  Lewis  v.  Wayne,  25  Ga.  167. 
no  consequence. 

274 


MORTGAGE    OF   INDEMNITY.  [§§  378,  379. 

security,^  yet  if  limited  by  the  terras  of  the  mortgage,  either  as 
to  amount  or  the  time  within  which  the  advances  are  to  be  made, 
or  the  nature  of  them,  the  limitation  must  be  strictly  observed  ; 
thus  a  mortgage  to  secure  credits  or  advances  to  be  made  within  a 
limited  time  secures  none  made  afterwards.^ 

If  limited  in  amount  and  time,  and  the  full  amount  be  once  ad- 
vanced and  repaid,  and  further  loans  are  made  within  the  time 
limited,  these  are  covered  by  the  mortgage  as  against  subsequent 
purchasers.*^  • 

378.  If  the  mortgagee  advance  only  a  part  of  the  sum  con- 
templated in  the  mortgage,  it  is  a  valid  security  for  so  much  as 
he  does  advance,*  and  for  so  much  only.  And  so  a  mortgage 
given  for  a  loan  and  for  the  price  of  lands  to  be  conveyed,  and 
the  mortgagee  wrongfully  refuses  to  convey  the  land,  it  can  be 
enforced  only  for  the  money  advanced.^ 

When  a  mortgage  is  an  open  one,  as  for  instance  one  made 
by  an  absolute  conveyance,  or  to  secure  undefined  future  advances, 
the  mortgagee  is  entitled  to  recover  under  it  only  so  much  as  he 
shows  affirmatively  to  be  due.  Any  doubt  and  uncertainty,  it  is 
said,  should  operate  against  the  mortgagee,  and  not  in  his  favor.^ 

3.  Mortgage  of  Indemnity. 

379.  Description  of  the  indemnity.  —  Very  much  of  what  has 
already  been  stated,  in  regard  to  present  and  future  debts  secured 
by  mortgages,  is  applicable  to  mortgages  made  to  indemnify  a 
mortgagee  against  liabilities  incurred  or  to  be  incurred  by  him  in 
behalf  of  the  mortgagor.  Mortgages  of  indemnity  are  perhaps 
most  often  given  as  security  for  liabilities  to  be  incurred  in  the 
future,  so  that  they  are  to  this  extent  mortgages  to  secure  future 
advances.  Such  mortgages  generally  declare  the  purpose  for  which 
they  are  given,  and  set  out  particularly  the  liabilities  incurred  or 

1  Commercial  Bank  v.  Cunningham,  24  ^  Miller  v.  Whittier,  36  Me.  577. 

Pick.  (Mass.)  270;  United  States  v.  Hooe,  ^  Wilson  v.  Russell,  13  Md.  494. 

3  Cranch,  73  ;  Shirras  v.  Caig,  7   Cranch,  *  See  Dart  v.  Me  Adam,  27  Barb.  187  ; 

34 ;  James  v.  Morey,  2  Cow.  (N.  Y.)  292  ;  and  see  Freeman  v.  Auld,  44  Barb.  (N. 

S.  C.  6  Johns.  Ch.  417;  Brinckerhoff  v.  Y.)  14. 

Lansing,  4  Johns.  (N.  Y.)  Ch.  73  ;  Bank  °  Robinson  v.  Cromelein,  15  Mich.  316. 

of  Utica  I'.  Finch,  3  Barb.   (N.  Y.)  Ch.  6  Kline    v.   McGuckin,    25   N.   J.    Eq. 

293;  Walker  v.   Snediker,  Hoff.  (N.    Y.)  433. 
Ch.  145  ;  Yelvertou  v.  Shelden,  2   Sandf. 
(N.  Y.)  Ch.  481. 

275 


§  380.]  THE   DEBT    SECURED. 

to  be  incurred  by  the  mortgagee.  But  this  is  not  essential.  A 
mortgage  given  for  a  definite  sum,  without  specifying  the  habih- 
ties  secured,  may  be  shown  by  parol  evidence  to  have  been  given 
to  indemnify  the  mortgagee  against  his  liability  as  an  indorser 
or  surety  for  the  mortgagor. ^  Thus,  where  a  mortgage  recited 
that  the  mortgagor  was  indebted  to  the  mortgagee  in  a  certain 
sum,  "  being  for  money  advanced,"  and  that  the  mortgage  was 
made  to  secure  the  payment  of  such  debt,  the  mortgagee  was  not 
precluded  from  showing  that  the  real  consideration  of  the  mort- 
gage was  the  indorsement  by  him  of  the  mortgagor's  note  for 
that  sum.  "  The  question  of  consideration  was  raised  by  the  de- 
fendant's proving,  by  the  mortgagee,  that  no  money  was  advanced 
to  him  upon  the  mortgage.  It  thus  became  proper,  if  not  neces- 
sary, to  show  what  the  real  consideration  was,  and  this  was  all 
that  was  done.  The  plaintiff  had  a  valid  mortgage,  as  to  the 
mortgagor."  He  would  not  be  permitted  to  impeach  it  by  show- 
ing that  the  consideration  was  not  money  advanced  to  him,  and 
shut  out  evidence  of  the  true  consideration.^  "  There  cannot  be 
a  more  fair,  bond  fide,  and  valuable  consideration,  than  the  draw- 
ing or  indorsing  of  notes  at  a  future  period,  for  the  benefit  and 
at  the  request  of  the  mortgagor  ;  and  nothing  is  more  reasonable 
than  the  providing  a  sufficient  indemnity  beforehand."  ^  It  is  un- 
doubtedly desirable  that  the  true  consideration  be  fully  stated, 
and  when  this  is  not  done,  the  instrument  maybe  open  to  the 
suspicion  that  it  was  made  to  deceive  the  mortgagor's  creditors  ; 
but  the  true  consideration  may  in  all  cases  be  explained.^ 

380.  A  general  description  of  the  liability  is  sufficient.  — 
A  mortgage  to  indemnify  an  indorser  for  liability  on  notes  to  be 
indorsed  within  two  years  from  the  date  of  the  mortgage,  to  an 
amount  not  exceeding  $16,000  at  any  one  time,  and  a  renewal  of 
such  notes,  was  sustained  as  against  a  purchaser  from  the  mort- 
gagee.^    A  mortgage   to  indemnify  one  for  indorsing  "  a  note  of 

1  Shirras  v.  Caig,  7  Cranch,  34;  Law-  *  McKinster  v.  Babcock,  supra ;  Gard- 
rence  u.  Tucker,  23  How.  14;  McKinster  ner  v.  Webber,  17  Pick.  (Mass.)  407, 
V.  Babcock,  26  N.  Y.  378  ;  Bank  of  Utica  414  ;  Commercial  Bank  v.  Cunningham, 
V.  Finch,  3  Barb.  (N.  Y.)  Ch.  293.  24  lb.  270. 

2  Per  Marvin,  J.,  in  McKinster  v.  Bab-  &  Utley  v.  Smith,  24  Conn.  290.  The 
cock,  supra.  court,  Ellsworth,  J.,  said  :  "  Were  this  an 

"  Per  Tilghman,  C.  J.,  in  Lyle  i'.  Du-  original  question,  it  would  be  difficult,  we 
comb,  5  Binn.  (Pa.)  585,  590.  think,  to  sustain  the    deeds  against  this 

276 


MORTGAGE    OF   INDEMNITY.  [§  380. 

$2,000,  made  payable  to  the  order  of  the  grantor,  and  by  him 
signed  and  indorsed,"  is  not  void  for  uncertainty.  The  note  in- 
tended may  be  identified  by  parol  evidence.^  A  condition  to  in- 
demnify the  mortgagee  against  liability  as  surety  for  the  mort- 
gagor, a  certain  sum  being  mentioned,  be  the  debts  more  or  less, 
covers  all  debts  for  which  the  mortgagee  is  surety,  be  they  more 
or  less.^  A  mortgage  conditioned  to  save  the  mortgagee  harmless 
for  indorsing  notes  for  the  mortgagor,  when  thereafter  requested, 
to  the  amount  of  $7,000,  and  also  renewal  notes,  is  not  invalid 
for  uncertainty,  as  against  subsequent  incumbrances.^  Nor  is  a 
mortgage  invalid  which  is  given  to  secure  an  "accommodation 
indorser  and  signer  on  sundry  notes,  drafts,  and  bills  of  exchange, 
now  maturing  in  sundry  banks,  and  in  the  hands  of  sundry  in- 
dividuals, to  the  amount  of  $50,000,  a  particular  description  of 
which  we  are  not  able  to  give,  or  in  whose  hands  they  are."  ^  A 
recital  in  a  mortgage  that  the  mortgagee  had  indorsed  two  bills 
of  exchange,  when  in  fact  he  had  indorsed  only  one,  and  had  paid 
the  other  for  the  honor  of  the  drawer,  does  not  invalidate  the 
security.^  A  mortgage  for  a  definite  sum,  but  expressed  to  be 
"  given  to  secure  whatever  indebtedness  may  at  any  time  exist 
from  the  mortgagor  to  the  mortgagee,"  does  not  restrict  the  in- 
debtedness secured  to  such  debts  as  may  be  contracted  directly 
from  the  mortgagor  to  the  mortgagee,  but  includes  also  any  obli- 
gations the  mortgagor  may  incur  by  indorsing  the  notes  of  another 
party.  The  terms  of  the  mortgage  are  broad  enough  to  cover 
any  kind  of  indebtedness.^ 

A  mortgage  made  to  secure  indorsers  upon  a  note  contemplated 
to  be  discounted  at  a  particular  bank,  and  so  expressed  in  the  deed, 
is  valid,  although  the  note  be  discounted  in  a  bank  other  than 
that  named,  and  is  subsequently  transferred  to  a  third  bank.  A 
subsequent  incumbrancer  cannot  invalidate  the  mortgage  for  this 
reason,  unless  he  can  show  that  he  was  misled  by  this  description, 

objection  ;  but  it  is  not;  and  althou<,^h  our  -  Orr  v.  Hancock,  1  Root  (Conn.),  265. 

early  decisions  would  hold  them  void,  for  ^  Ketchuin  v.  Jauncey,  23  Conn.  123. 

vagueness,  our  decisions  for  the  last  ten  *  Lewis  v.  Dc  Forest,  20  Conn.  427. 

or   fifteen   years  have   gone  further,   and  ^  Fetter   v.  Cirode,  4   B.   Mon.    (Ky.) 

established  the  law  to  be  liberal  enough  482. 

to  sustain  mortgages  quite  as  indefinite  ^  First  Nl.  Bank  of  Paterson  v.  Byard, 

as  the  present."  26  N.  J.  Eq.  255. 

1  Goddardy.  Sawyer,  9  Allen  (Mass.), 
78. 

277 


§§  381,  382.]  THE  DEBT  SECURED. 

and  advanced  money  upon  the  land,  or  acquired  an  interest  in  it 
after  inquiry,  and  in  the  confidence  that  no  such  lien  existed.^ 

381.  All  limitations  of  the  security  must  be  observed.  — 
But  if  the  sum  for  which  the  mortgage  of  indemnity  is  given 
be  limited,  the  security  cannot  be  extended  beyond  that  amount. 
In  order  to  create  a  liability  upon  a  mortgage  made  to  guarantee 
a  contemplated  loan  to  another,  the  loan  must  correspond  with 
the  recital  of  it  in  the  mortgage.^ 

A  mortgage  made  to  secure  one  from  all  liability,  which  he 
may  incur  by  reason  of  his  becoming  surety  or  indorser  on  the 
notes  of  the  mortgagor,  does  not  secure  notes  given  to  the  mort- 
gagee for  money  loaned  by  him,  and  as  evidence  of  such  loan ;  ^ 
and  a  mortgage  conditioned  for  the  payment  of  all  sums  of  money 
owing  by  the  mortgagor  to  the  mortgagee  as  maker  or  indorser  of 
any  notes,  bills  of  exchange,  bonds,  checks,  or  securities  of  any 
kind  given  by  him,  does  not  secure  a  debt  not  evidenced  by  an 
instrument  in  writing.^ 

382.  A  continuing  security.  —  A  mortgage  given  to  in- 
demnify an  indorser  or  surety  on  a  note  is  a  continuing  security 
for  all  renewals  of  such  note  until  it  is  finally  paid.^  So  long 
as  the  liability  continues,  the  security  continues  also.^  Although 
made  for  a  definite  sum  to  a  bank  to  secure  the  liabilities  of  a  firm 
for  the  payment  of  certain  notes,  the  bank  stipulating  to  discharge 
the  mortgage  when  the  mortgagors  should  cease  to  be  under  any 
liabilities  to  the  bank,  it  is  a  valid  security  for  new  notes  given 
to  the  bank  in  renewal  of  the  original  notes,  and  subsequent  pur- 
chasers cannot  object  to  it  because  the  agreement  of  the  bank  was 
not  recorded,  or  that  the  new  notes  were  made  or  indorsed  by  a 
new  firm,  formed  by  taking  in  another  partner.^     Under  a  mort- 

^  Pattersons.  Johnston,  7  Ohio,  225.  164;   Brinckerhoff  v.  Lansing,  4  Johns. 

2  Thomas  u.  Olney,  16  111.  53;  and  see  (N.  Y.)   Ch.   65;    Babcock    v.  Morse,   19 

Ryan  v.  Shawneetown,  14  111.  20 ;  Griffiths,  Barb.  (N.  Y.)  140. 

re,  1   Lowell,  431  ;  Townsend  v.  Empire  6  Hawkins  v.  May,  12  Ala.  673. 

Stone  Dressing  Co.  6  Duer  (N.  Y.),  208.  ^  Commercial  Bank  v.  Cunningham,  24 

^  Clark  i>.  Oman,  15  Gray  (Mass.),  521.  Pick.   (Mass.)   270.     The   mortgage  may 

*  Walker  v.  Paine,  31    Barb.    (N.   Y.)  properly  provide  in  terms  that  it  shall  be 

213;  and  see  Lauderdale  v.  Hallock,  15  a  continuing  security.     Fassett  v.  Smith, 

Miss.  (7  S.  &  M.)  622.  23  N.  Y.  252. 

^  Chapman  v.  Jenkins,  31  Barb.  (N.  Y.) 

278 


MORTGAGE   OF    INDEMNITY.  [§§  383,  884. 

gage  given  to  secure  the  maker  of  accommodation  notes,  and  re- 
newals of  them  from  time  to  time,  it  is  not  necessary,  in  order 
to  constitute  the  new  notes  renewals,  that  they  should  be  given 
for  the  same  amounts,  and  at  the  same  periods  as  the  original 
notes,  or  tiiat  each  should  be  applied  to  discharge  its  immediate 
predecessor.^ 

A  mortgage  to  indemnify  a  surety  upon  a  guardian's  bond 
applies  to  arenewal  of  the  bond.^ 

383.  When  a  lien  from  the  time  of  the  execution  of  the 
mortgage.  —  A  mortgage  of  indemnity  to  a  surety  is  a  lien  from 
the  time  of  its  execution,  and  not  merely  from  the  time  when  the 
mortgagee  pays  the  debt  on  which  he  is  surety,  and  therefore  it 
takes  precedence  of  a  conveyance  made  by  the  mortgagor  or  a 
judgment  rendered  against  him,  after  the  execution  of  the  mort- 
gage and  before  the  mortgagee  hus  paid  the  debt  so  as  to  become 
entitled  to  enforce  the  security.^  It  is  sometimes  said  that  a 
mortgage  given  to  secure  one  who  is  expected  to  make,  indorse, 
or  accept  negotiable  paper  for  the  accommodation  of  another,  is  a 
lien  from  the  time  such  liability  is  incurred  ;  ^  but  whenever  there 
is  a  legal  obligation  to  incur  the  liability,  the  mortgage  is  a  lien 
from  the  time  of  its  delivery.^  When  there  is  no  obligation  to 
incur  such  future  liabilities  the  mortgage  constitutes  a  lien  from 
the  time  the  liability  is  incurred,  and  is  preferable  to  a  judgment 
rendered  afterwards,^  but  not  to  incumbrances  made  before  ad- 
vances, of  which  the  mortgagee  had  notice  at  the  time  of  the  ad- 
vances. 

384.  Evidence  to  fix  the  amount  secured  by  the  mortgage.  — 
Parol  evidence  is  admissible  to  show  the  true  character  of  a  mort- 
gage and  for  what  purpose  and  what  consideration  it  was  given. 
Although  it  be  for  a  definite  sum  and  secures  the  payment  of 
notes  for  definite  amounts,  it  may  be  shown  that  the  mortgage 

1  Gault  V.  McGrath,  32  Pa.  St.  392.  36  Pa.  St.   170;  Bank  of  Commerce  Ap- 

2  Bobbin  V.  Flowers,  I   Swan  (Tenn.),     peal,  44  lb.  423. 

511.  ,  5  Taylor  u.  Cornelius,  60  Pa.   St.   187; 

3  Watson   V.  Dickens,  20  Miss.  (12    S.     Lyie  v.  Ducomb,  5  Binn.  (Pa.)  58.5. 

&  M.)   608;  Burdett  v.  Clay,  8  B.  Mon.  «  Kramer   i-.   Farmers',    &c.    Bank,    15 

(Ky.)  287.  Ohio,  253;  Hartley  y.  Kirlin,  45  Pa.   St. 

*  Choteau   v.    Thompson,*  2    Ohio    St.  49. 
1 14 ;  Bank  of  Montgomery  Co.  Appeal, 

279 


§§  385,  386.]  THE   DEBT    SECURED. 

was  simply  one  of  indemnity .^  When  the  object  is  simply  to  in- 
demnify the  mortgagee  for  a  liability  he  has  incurred  or  may 
incur,  the  amount  of  the  mortgage,  or  of  the  mortgage  note,  serves 
merely  to  limit  the  extent  of  the  security.  Upon  the  foreclosure 
of  such  a  mortgage,  the  amount  for  which  judgment  is  to  be  ren- 
dered is  the  amount  the  mortgagee  has  been  compelled  to  pay 
under  the  liability  for  which  he  was  secured,  with  interest  from 
the  date  of  the  payment.  The  amount  and  date  of  the  mortgage 
note  are  wholly  disregarded  in  ascertaining  this  sum.^ 

385.  When  the  principal  creditor  becomes  entitled  to  secu- 
rity given  to  a  surety.  —  The  principal  creditor  is  not  entitled 
to  the  benefit  of  a  mortgage  given  to  indemnify  an  accommoda- 
tion indorser  until  the  absolute  liability  of  the  indorser  is  fixed.^ 
If  the  indorser  is  discharged  by  the  laches  of  the  creditor,  he  can- 
not claim  the  benefit  of  the  mortgage.*  The  condition  of  such  a 
mortgage  is  broken  when  the  mortgagor  fails  to  pay  the  debt  at 
the  time  stipulated,  so  that  the  mortgagee  is  exposed  to  a  suit.^ 
He  may  then  at  once  proceed  to  foreclose  the  mortgage  without 
notice  or  further  action  on  his  part.^  When  the  condition  is  to 
indemnify  the  mortgagee  against  the  support  of  a  third  person, 
it  is  a  sufficient  breach  that  the  mortgagee  is  compelled  to  pay 
for  such  support  for  a  part  of  the  time.^ 

If  the  mortgage  to  the  surety  include  a  debt  due  to  himself,  as 
well  as  the  debt  for  which  he  is  liable  as  surety,  as  between  him- 
self and  the  principal  creditor,  the  latter  is  entitled  to  be  first 
paid  out  of  the  proceeds  of  the  mortgage,  on  the  ground  that  such 
mortgagee  is  a  quasi  trustee  for  the  creditor  in  respect  of  the  in- 
demnity thus  obtained.^ 

386.  Whether  surety  may  release  the  security.  —  Under 
what  circumstances  one  who  has  taken  a  mortgage  solely  for  his 
own  indemnity  as  a  surety  for  the  debt  of  another  may  release 
the  security  does  not  seem  to  be  determined.  As  against  the 
principal  creditor  who  is  entitled  to  the  benefit  of  the  securities 

1  Price  V.  Cover,  40  Md.  102.  5  Shaw  v.  Loud,  12  Mass.  447. 

2  Athol  Savings  Bank  v.  Pomroy,  115         ^  Butler  v.  Ladue,  12  Mich.  173. 
Mass.  573  ;  and  see  §  64.  ''  Whitton  v.  Whitton,  38  N.  H.  127. 

8  Tilford  V.  James,   7  B.  Mon.    (Ky.)         »  Ten  Eyck  ?;.  Holmes,  3  Sandf.  (N.  Y.) 
336.  Ch.  428. 

*  Tilford  V.  James,  supra. 

280 


MORTGAGE   OF   INDEMNITY.  [§  387. 

held  by  the  surety,  it  would  seem  at  any  rate  that  after  a  default 
on  tlie  part  of  the  principal  debtor,  and  the  liability  of  the  surety 
had  thus  become  fixed,  he  could  not  release  the  securities  held  by 
him.  As  against  his  own  creditors  after  he  has  become  insolvent, 
it  would  also  seem  that  he  could  not  release  a  mortgage  or  other 
security  held  by  him  as  indemnity. ^  If  the  mortgage  held  by  him 
be  anything  more  than  one  of  indemnity,  if  it  in  terms  secures 
the  original  debt,  he  has  no  right  to  discharge  it. 

An  indorser  of  certain  notes  took  from  the  maker  of  them  a 
mortgage  as  security  from  any  loss  the  indorser  might  sustain 
from  the  non-payment  of  the  notes.  The  proviso  was  that  the 
mortgagor  should  pay  the  notes  at  their  maturity  "  to  the  holders 
of  them,"  or  to  the  indorser,  should  he  be  compelled  to  take  them 
up  ;  the  mortgagee  subsequently  released  the  mortgage  before  the 
notes  were  paid,  and  the  mortgagor  conveyed  the  premises  to  a 
purchaser.  The  holder  of  the  mortgage  notes  then  filed  a  bill  to 
foreclose  the  mortgage  ;  and  it  was  held  that  the  mortgage  was  a 
security  for  the  payment  of  the  notes,  as  well  as  an  indemnity  to 
the  indorser  ;  that  it  enured  to  the  benefit  of  any  one  in  whose 
hands  the  notes  might  be,  provided  he  is  a  hond  fide  holder  of 
them  ;  and  that  consequently  the  mortgagee  had  no  power  to  re- 
lease the  mortgage,  so  as  to  deprive  the  holder  of  the  notes  of  the 
benefit  of  this  securit3\2 

387.  Not  after  liability  is  fixed.  —  A  mortgage  given  to  in- 
demnify a  surety  or  indorser  does  not,  in  the  first  instance,  attach 
to  the  debt ;  and  whatever  equity  may  ai'ise  in  favor  of  the  cred- 
itor with  regard  to  the  security  arises  afterwards,  and  in  conse- 
quence of  the  insolvency  of  the  parties  primarily  holders  for  the 
debt.  Until  this  equity  arises,  the  surety  has  a  right  in  equity  as 
well  as  at  law  to  release  the  security.  Even  after  such  insol- 
vency the  mortgagee  may  surrender  the  security,  if  he  does  it  in 
good  faith,  and  before  any  claim  is  made  npon  him  for  it.  The 
application  of  it  for  the  benefit  of  third  persons  can  only  be  ac- 
complished by  the  interposition  of  a  court  of  equity,  and  in  case 
the  mortgagee  still  retains  the  security.^ 

1  Woodville  v.  Reed,  26  Md.  181.  Jones  v.  Quinnipiack  Bank,  29  Conn.  25; 

2  Boyd  y.  Parker,  43  Md.  182.  Post    v.   Tradesmen's    Bank,    28    Conn. 

3  Thrall    v.   Spencer,    IG    Conn.    139;  420. 
Homer  v.   Savings  Bank,  7   Conn.  478 ; 

281 


§  388.]  THE   DEBT    SECURED. 

But  after  the  principal  debtor  has  become  insolvent,  the  surety 
cannot  make  a  valid  agreement  with  the  holder,  or  any  party  in- 
terested in  one  of  the  notes  on  which  he  is  indemnified  by  the 
mortgage,  that  the  security  shall  be  first  applied  to  such  note  ;  the 
holders  of  all  such  notes  are  entitled  in  equity  to  share  in  the 
property  in  proportion  to  their  respective  claims. ^ 

When  a  mortgage  is  given  to  indemnify  an  indorser,  the  cred- 
itor has  an  equitable  claim  to  the  security,  and  after  the  liability 
is  fixed  is  entitled  to  have  the  mortgage  assigned  to  him.  This 
is  the  rule  not  only  where  the  condition  is  that  the  mortgagor 
shall  pay  the  debt,  but  also  where  it  merely  stipulates  that  he 
shall  indemnify  the  surety.^  Thus,  a  mortgage  by  the  principal 
maker  of  a  promissory  note  to  his  surety,  conditioned  that  the 
principal  will  pay  the  note  and  save  the  surety  harmless,  creates 
a  trust  and  an  equitable  lien  for  the  holder  of  the  note  ;  and  even 
after  the  surety's  liabilit}^  to  the  holder  of  the  note  is  barred  by 
the  statute  of  limitations,  he  holds  the  property  subject  to  such 
trust  and  lien.^  If  he  has  foreclosed  the  mortgage,  and  obtained 
an  absolute  title  to  the  property,  the  same  trust  still  attaches  to 
it.^  This  equitable  lien  binds  the  property,  after  a  transfer  of  it 
by  the  mortgagee  to  one  who  has  notice  of  the  trust.  The  mort- 
gage is  treated  as  a  mere  security  for  the  debt ;  and  when  the  debt 
is  assigned  by  the  mortgagee,  it  carries  with  it  in  equity,  as  an 
incident,  a  right  to  have  the  estate  appropriated  for  the  payment 
of  the  debt  in  the  hands  of  the  assignee.  To  carry  out  and  en- 
force this  equity,  the  mortgagee  is  regarded  as  the  trustee  of  those 
to  whom  he  has  assigned  the  debt  secured  by  the  mortgage,  and 
can  be  compelled  to  appropriate  it  for  their  benefit.^ 

4.  Mortgages  for  Support. 

388.  Sometimes  held  not  to  be  strictly  mortgages.  —  It  has 
sometimes  been  questioned  whether  a  deed  conditioned  for  the 
support  and  maintenance  of  a  person,  or  for  the  performance  of 
any  other  duty  the  damages  for  a  breach  of  which  are  unliqui- 
dated, can  be  regarded  as  strictly  a  mortgage.     Early  definitions 

1  Lewis  V.  De  Forest,  20  Conn.  428.  27  N.  H.  236  ;   Phillips   v.  Thompson,  2 

2  New   Bedford   Inst,   for    Savings    v.     Johns.  (N.  Y.)  Ch.  418. 

Fairhaven  Bank,  9  Allen,  175  ;  Aldrich  v.  3  Eastman  v.  Foster,  8  Met.  (Mass.)  19. 

Martin,  4  11.  I.  .520 ;  Saylors  v.  Saylors,  3  ^  Eastman  v.  Foster,  supra. 

Heisk.  (Tenn.)  525   Kiddle  v.  Bowman,  ^  Rice  v.  Dewey,  13  Gray  (Mass.),  47. 
282 


MORTGAGES  FOR  SUPPORT.  [§  388. 

of  mortgages  are  found  by  which  no  conditional  conveyances  are 
mortgages  except  such  as  are  made  for  the  security  of  a  loan  of 
money  ;  others  include  all  conveyances  made  as  security  for  any 
debt ;  while  the  later  doctrine  generally  is,  that  a  conveyance  con- 
ditioned for  the  performance  of  any  contract  is  a  mortgage.^  But 
in  quite  recent  cases  it  is  said  that  many  contracts,  the  perform- 
ance of  which  may  be  secured  by  conveyances  of  land,  have  such 
peculiarities  that  the  rules  of  law  relating  to  mortgages  can  have 
but  a  very  partial  if  any  application  to  them.^  In  New  Hamp- 
shire, although  it  is  provided  by  statute  ^  that  "  every  conveyance 
of  lands  made  for  the  purpose  of  securing  the  payment  of  money, 
or  the  performance  of  any  other  thing  in  the  condition  thereof 
stated,  is  a  mortgage,"  it  is  held  that  a  deed  conditioned  for  sup- 
port, and  implying  the  personal  services  of  the  mortgagor,  is  not 
a  mortgage.  Neither  the  grantor  nor  the  grantee,  under  such  a 
deed,  can  assign  his  interest.  The  contract  is  for  services  to  be 
rendered  by  the  one  in  person  to  the  other  in  person.  The 
former  having  assumed  a  personal  trust,  cannot  substitute  another 
person  in  his  place  to  fulfil  it.*  Upon  his  death,  a  sale  of  the 
estate  by  his  administrator  under  license  of  court  subject  to  this 
duty  passes  no  title,  and  the  purchaser  cannot  maintain  a  bill  to 
redeem.^  And  on  the  other  hand,  it  is  held  that  the  person  who 
is  to  receive  the  personal  service  cannot  assign  the  obligation  and 
security  to  another,  so  as  to  enable  such  other  person  to  enforce 
it,  unless,  perhaps,  where  there  has  been  an  actual  breach  and  an 
entry  for  condition  broken  before  the  assignment.^ 

In  Pennsylvania,  upon  somewhat  different  grounds,  it  is  said  that 

1  Per  Bell,  C.  J.,  in  Bethlehem  v.  An-  mortgage  in  equity,  but  as  a  conditional 
nis,  40  N.  H.  34.  deed  at  common  law.    It  has  the  incidents 

2  Bethlehem  v.  Annis,  supra,  per  Bell,  of  a  mortgage  only  to  a   limited  extent, 
C.  J.  and  the  party,  if  relieved  by  a  court  of 

8  Gen.  Stat.  1867,  253,  ch.  122,  §  1.  equity  from  the  forfeiture  resulting  from 
*  Flanders  v.  Lamphear,  9  N.  H.  201.  the  non-performance  of  the  condition,  will 
See,   however,  Austin    v.   Austin,  9    Vt.  not  be  relieved  as  in  cases  of  a  mortgage. 
420;  Bryant  v.  Erskine,  5.5  Me.  153.  It  is  not,  however,  intended  to  say  that  the 
°  Eastman  v.  Bachclder,  36  N.  H.  141.  same  principle  of  justice,  which    has  led 
6  Bryant  v.  Erskine,  55  Me.  1.53  ;  Beth-  courts  of  equity  to  establish  the  system  of 
lehem  v.  Annis,  40  N.  H.  34.  "  In  this  case  relief  from  forfeitures  in  the  case  of  mort- 
Chief  Justice  Bell  said  :  —  gages,  will  not  entitle  a  party  to  analogous 
"  Wherever  the  condition,  when  broken,  relief  in  cases  where  the  design  of  the  par- 
gives  rise  to  no  claim  for  damages  what-  ties  is  to  make  a  conveyance  by  way  of 
ever,  or  to  a  claim  for  unliquidated  dam-  security." 
ages,  the  deed  is  not  to  be  regarded  as  a 

283 


§  389.]  THE   DEBT    SECURED. 

when  a  father  conveys  land  to  his  son,  and  takes  a  reconveyance, 
conditioned  for  the  faithful  performance  of  covenants  to  support, 
although  such  reconveyance  may  be  termed  a  mortgage,  it  is  some- 
thing more  than  a  mortgage  ;  for  in  an  ordinary  mortgage,  when 
the  object  of  security  is  accomplished,  the  conveyance  becomes 
void;  but  if  there  be  abreach  of  the  condition  to  support,  and  the 
father  in  consequence  takes  possession,  the  son  cannot  claim  upon 
his  father's  death  that  the  title  should  vest  in  him,  notwithstand- 
ing he  has  failed  to  perform  his  covenants.  That  would  be  no  se- 
curity that  the  son  would  perform  his  covenants,  but  an  induce- 
ment for  him  to  break  them.  It  would  enable  him  to  throw  off 
all  the  trouble  and  responsibility  of  his  contract,  and  simply  by 
waiting  a  few  years  without  doing  anything,  get  the  property  for 
nothing.  Nothing  can  give  effectual  security  fcr  the  performance 
of  such  covenants  but  the  right  to  revest  the  entire  estate  upon  a 
breach.  The  son  having  broken  his  covenants  to  support  his 
father  during  life,  has  no  possible  equity  on  his  death  to  demand 
a  reconveyance.  A  recovery  in  ejectment  by  the  father  after 
breach  as  effectually  revests  the  title  in  him  as  would  a  reentry 
for  condition  broken.^ 

But  the  courts  generally  treat  as  mortgages  conveyances  condi- 
tioned for  the  support  and  maintenance  of  the  mortgagees.  They 
are  generally  in  such  terms  that  the  court  can  by  an  award  of 
damages  compensate  the  mortgagees  for  a  non-performance  of  the 
personal  services ;  ^  but  it  rests  in  the  sound  discretion  of  the 
court  whether  a  forfeiture  shall  be  relieved  in  this  way.^ 

389.  Mortgagor's  right  of  possession  implied.  —  Generally, 
when  land  has  been  conveyed  to  the  mortgagor  by  the  mortgagee, 
who  has  taken  a  mortgage  of  the  same,  conditioned  for  his  sup- 
port, there  is  a  necessary  implication,  nothing  appearing  to  the 

1  Soper  V.   Guernsey,  71    Pa.  St.  219.  hereby  granted  shall  become  void  and  of 

The  defeasance  in  this  case  was:  "Pro-  none  effect." 

vided  always,  nevertheless,  that  if  the  said  2"2  Greenl.  Cruise,  80,  n. ;  Hoyt  v.  Brad- 
party  of  the  first  part  shall  and  does  well,  ley,  27  Me.  242  ;  Austin  v.  Austin,  9  Vt. 
truly  and  faithfully  perform  all  and  sin-  420.  Chancellor  Phelps,  in  this  case,  said: 
gular  the  aforesaid  covenants,  promises,  "  There  is,  certainly,  no  difficulty  in  mak- 
and  agreements  unto  the  said  party  of  the  ing  compensation  for  past  maintenance, 
second  part,  according  to  the  true  intent  any  more  than  in  any  case  of  a  contract  to 
and  meaning  thereof,  without  fraud  or  perform  services." 
delay,  then  this  indenture  and  the  estate  ^  Henry  v.  Tupper,  29  Vt.  358. 

284 


MORTGAGES   FOR   SUPPORT.  [§§  390,  391. 

contrary,  that  the  mortgagee  is  not  to  enter  until  there  is  a  breach 
of  the  condition. 1  Tlie  possession  of  the  property  is  generally 
essential  to  the  mortgagor  to  enable  him  to  perform  the  condition. 
The  mortgagee  cannot  then  maintain  an  action  for  possession  un- 
til there  has  been  a  breach  of  condition. 

390.  Alternative  condition.  —  When  a  mortgage  is  condi- 
tioned to  pay  a  certain  sum  or  to  support  the  mortgagees,  the 
mortgagor  has  his  election  which  alternative  he  will  take,  and  if 
he  elect  to  furnish  support,  he' is  entitled  to  possession  of  the 
premises  in  order  to  be  enabled  to  comply  with  the  condition 
he  has  chosen  to  perform.  But  having  once  made  the  election 
he  cannot  revoke  it.  His  election  is  also  conclusive  upon  the 
mortgagee,  who  cannot  have  the  election  in  the  beginning,  and 
much  less  can  he  have  part  performance  of  one  of  the  alternatives, 
and  then  claim  the  entire  performance  of  the  other.^  The  elec- 
tion having  been  made,  the  mortgage  becomes  security  for  the  per- 
formance of  the  condition  chosen  as  effectually  as  if  that  alone 
had  been  set  forth. ^ 

But  a  mortgage  to  secure  the  payment  of  $500  in  five  3'ears, 
"  to  be  paid  in  furnishing  the  mortgagee,"  during  that  period,  "  a 
good  and  sufficient  home  and  support,"  does  not  give  the  mort- 
gagor his  election  to  pay  in  money."* 

391.  Where  the  support  is  to  be  furnished.  —  When  no  place 
is  stipulated  where  the  mortgagee  is  to  receive  support,  he  has  a 
right  to  be  supported  wherever  he  may  choose  to  live,  provided  he 
does  not  create  any  needless  expense  to  the  mortgagor.^  When 
it  is  provided  that  the  support  is  to  be  furnished  on  the  granted 
premises,  but  that  the  mortgagor,  with  his  family,  may  also  re- 
side there,   the  latter  has  no  right   to  insist  that  the  mortgagee 

1  Flandeis  v.  Lamphear,  9  N.  H.  201  ;  to  one  and  his  heirs,  the  grantor  siiall  have 
Ehoadcs  v.  Parker,  10  N.  H.  83  ;  Dearborn  the  election,  for  he  is  the  first  agent,  by 
u.  Dearborn,  9  N.  H.  117  ;  Brown  (;.  Leach,  payment   of  one  or  the  delivery  of   the 
35  Me.  41  ;    Bryant  v.   Erskine,  55  Me.  other."    3  Bac.  Abr.  Election,  B,  p.  309. 
153.     See  §  80.  ^  See  Furbish  v.  Scars,  2  Cliff.  454. 

2  Bryant  v.  Erskine,  55  Me.   153.     "It  *  Hawkins  v.  Clermont,  15  Mich.  511  ; 
is  laid  down  as  a  general  rule  that,  in  case  and  see  Evans  v.  Norris,  6  Mich.  369. 
an'election  is  given  of  two  several  things,  ""  Wilder  v.  Whittemore,  15  Muss.  263; 
he  who  is  the  first  agent,  and  ought  to  do  Thayer  v.  Richards,  19  Pick.  (Mass.)  398  ; 
the  first  act,  shall  have  the  decision.     As  Flanders  v.  Lamphear,  9  N.  H.  201. 

if  a  man  grants  a  rent  of  20s.  or  a  robe 

285 


§  391.]  THE   DEBT   SECURED. 

shall  become  a  part  of  his  family  or  receive  support  at  his  table, 
and  in  the  apartments  occupied  by  him.  A  refusal  to  furnish 
such  support  in  a  separate  room  is  a  breach  of  the  condition.^ 

The  condition  of  such  a  mortgage  is  broken  by  the  mortgagor's 
declining  to  pay  for  the  board  of  the  mortgagee  at  a  suitable 
place,  although  he  make  no  special  demand  upon  him  for  such 
support.^ 

A  mortgage  conditioned  to  provide  a  home  in  the  house  on 
the  premises  obliges  the  mortgagor,  notwithstanding  his  removal 
from  the  premises,  and  the  home  becoming,  by  natural  decay  and 
without  his  fault,  much  dilapidated  and  not  worth  repairing,  to 
provide  a  home  there,  or  to  furnish  an  equivalent  elsewhere,  but 
does  not  oblige  him  to  supply  food,  clothing,  or  fuel.  The  fact 
that  the  mortgagor  actually  furnished  such  supplies  for  some 
time  after  making;  the  mortgage  does  not  affect  this  construe- 
tion.^ 

It  is  not  sufficient  proof  of  a  breach  of  contract  to  support  a 
person  during  his  life,  to  show  that  he  left  the  house  of  the 
obligor  and  resided  elsewhere  for  several  years,  but  without  at  any 
time  requesting  him  to  fulfil  his  agreement,  or  in  any  way  mani- 
festing to  him  an  intention  or  desire  to  hold  him  to  the  perform- 
ance of  the  obligation.* 

Where  a  mortgage  by  a  son  to  his  mother  was  conditioned 
"  to  provide  a  horse  for  said  Mai'gery  to  ride  to  meeting  and  else- 
where, when  necessary  ;  find  her  firewood  for  one  fire,  to  be  drawn 
and  cut  at  the  door,  fit  for  use  ;  give  her  a  good  cow,  and  keep 
said  cow  for  her  during  the  natural  life  of  her  the  said  Margery," 
it  was  held  that  the  destruction  of  the  house  in  which  the  mother 
lived  with  her  son  did  not  exempt  him  from  the  performance  of 
the  condition,  and  that  he  was  bound  to  furnish  the  wood  at  such 
place  as  she  should  make  her  home,  within  a  reasonable  and  con- 
venient distance ;  that  if  the  mortgagee  was  obliged  to  sell  the 
cow  in  consequence  of  its  not  being  properly  kept,  it  was  not 
necessary,  in  order  to  charge  him  with  the  cost  of  keeping  a  cow 
for  the  time  subsequent  to  the  sale,  that  the  mortgagee  should 
purchase  a  cow  and  tender  her  to  the  mortgagor  to  be  kept.^ 

1  Iluhbard     v.     Hubbard,     12     Allen         *  Jenkins  v.   Stetson,  9   Allen  (Mass.), 
(Mass.),  586.  128;     Thayer     v.    Richards,     19     Pick. 

2  Petteei;.  Case,  2  Allen  (Mass.),  546.        (Mass.),  398  ;  Ehoades  v.  Parker,  10  N. 
^•Gibson  v.  Taylor,    6    Gray    (Mass.),     H.  83. 

310.  6  Fiske  V.  Fiske,  20  Pick.  (Mass.)  499. 

286 


MORTGAGES   FOR   SUPPORT.  [§§  392,  393. 

392.  Who  may  perform  the  condition.  —  As  ah'eady  stated, 
a  mortgage  for  support  is  in  its  nature  a  contract  for  personal 
services,  and  especially  when  by  its  terms  the  condition  is  to  be 
performed  by  the  mortgagor,  his  executors,  and  administrators, 
the  duty  cannot  be  ti'ansferred  to  a  third  person.  Upon  the  death 
of  the  mortgagee,  the  condition  must  be  kept  by  his  heirs,  execu- 
tors, or  administrators,  and  the  mortgaged  property  subject  to 
this  duty  cannot  be  disposed  of  by  the  administrator  for  the  pay- 
ment of  the  mortgagor's  debts.-^ 

393.  Who  may  foreclose.  —  A  mortgage  for  the  support  of 
the  grantee  and  his  wife  during  their  lives  may  be  foreclosed  by 
the  administrator  of  the  grantee,  for  a  breach  of  condition  oc- 
curring both  before  and  after  the  grantee's  death,  although  his 
widow  does  not  join  in  the  suit.^ 

But  where  a  mortgage  was  conditioned  to  support  the  mort- 
gagee during  her  lifetime,  and  there  was  no  evidence  of  a  breach 
of  the  condition,  or  of  any  demand  for  support  other  than  what 
was  furnished,  it  was  held  that  the  administrator  of  the  mort- 
gagee could  not  foreclose  the  mortgage  for  the  benefit  of  persons 
who  had  boarded  the  mortgagee  at  the  mortgagor's  request.  The 
mortgage  was  regarded  as  for  the  benefit  of  the  mortgagee,  and 
not  for  the  benefit  of  those  who  might  furnish  her  with  support. 
Whatever  claim  they  severally  had  for  boarding  and  taking  care 
of  her  at  the  mortgagor's  request  was  against  him  personally,  and 
not  against  her  or  her  estate.^ 

Where  a  mortgage  from  a  son  to  his  parents,  for  their  support, 
provides  also  for  the  use  of  a  horse  and  buggy  when  they,  or 
either  of  them,  may  desire  it,  there  is  a  breach  of  the  condition, 
upon  a  failure  to  furnish  it  on  a  reasonable  demand  by  either  of 
them  alone,  and  either  of  them  may  have  a  separate  action  for 
damages.  The  provision  is  not  joint  but  several.  The  damages 
allowed  should  cover  the  actual  damafje  sustained.  No  decree  can 
be  made  for  future  violations  of  this  provision.  It  is  impossible 
to  determine  in  advance  what  damages  may  result  from  a  failure 
to  perform  the  condition.* 

1  Eiistnian  r.  BatcheWer,  36  N.  H.  141  ;  2  Marsh  u.  Austin,  1  Alku  (Mass.), 
Bethlehem  v.  Annis,  40  N.  H.  34 ;  Bryant     235. 

V.  Erskine,  55  Me.  153.  ^  Daniels  v.  Eisenlord,  10  Mich.  454.* 

*  Tucker  v.  Tucker,  24  Mich.  426. 

287 


§§  394,  395.]  THE   DEBT   SECURED. 

An  instrument  under  seal  but  not  acknowledged,  in  wliicli  the 
maker  agrees  to  support  his  father  and  mother  during  their  natural 
lives,  and  as  security  for  the  fulfilment  of  the  agreement  conveys 
and  grants  to  them,  "  each  and  severally,  a  life  lien  or  dower,  or 
lien  of  maintenance  for  life,"  in  real  estate,  is  a  mortgage  ;  and 
upon  a  breach  of  the  agreement,  an  action  for  possession  of  the 
premises  may  be   sustained  by  the  father  alone. ^ 

394.  Agreement  for  arbitration.  —  Under  a  mortgage  to  se- 
cure the  performance  of  a  bond  or  contract  conditioned  to  sup- 
port the  mortgagee,  a  stipulation,  "  that  should  either  party  be 
dissatisfied  with  the  fulfilling  of  the  above  bond,  it  shall  be  sub- 
mitted "  to  three  persons  named,  "  and  their  decision  shall  be 
final,"  does  not  prevent  an  action  for  breach  of  condition  by  the 
mortgagee.  This  comes  within  the  general  principle,  that  an 
agreement  for  arbitration  shall  not  deprive  one  of  his  legal  rem- 
edies.^ 

395.  Such  a  mortgage  may  be  redeemed  after  breach.^  — 
Although  there  can  be  no  judgment  upon  the  mortgage  for  the 
non-performance  of  duties  of  a  strictly  personal  nature,  there  may 
be  for  the  non-performance  of  personal  services  to  be  performed 
by  the  mortgagor  or  by  others,^  especially  when  the  forfeiture 
has  been  accidental  or  unintentional,  and  not  attended  with  irrep- 
arable injury,  relief  should  be  granted.  In  a  case  before  the  Su- 
preme Court  of  Vermont,^  Redfield,  C.  J.,  said :  ''  We  must  all 
feel  that  cases  of  the  character  before  the  court  should  be  received 
with  something  more  of  distrust,  and  relief  afforded  with  more 
reserve  and  circumspection,  than  in  ordinary  cases  of  collateral 
duties.  And  although  we  are  not  prepared  to  say  that  it  must 
appear  that,  in  all  cases,  the  failure  arises  from  surprise,  or  acci- 
dent, or  mistake,  we  certainly  should  not  grant  relief  when  the 
omission  was  wilful  and  wanton,  or  attended  with  suffering  or  se- 
rious inconvenience  to  the  grantee,  or  there  was  any  good  ground 

to  apprehend  a  recurrence  of  the  failure  to  perform The 

case  might  occur  where  the  refusal  to  afford  daily  support  would 

1  Gilson  V.    Gilson,   2   Allen  (Mass.),         ^  Bryant   v.   Erskine,  55  Maine,    153; 
115  ;  and  see  Lanfair  v.  Lanfair,  18  Pick.     Bethleiiem  v.  Annis,  40  N.  H.  43. 
(Mass.)  299.  4  Hoyt  v.  Bradley,  27  Me.  242. 

2  Hill  V.  More,  40  Me.  515.  6  Henry  v.  Tapper,  29  Vt.  358,  375. 

288 


MORTGAGES   FOR   SUPPORT.  [§  395. 

be  wanton  or  wicked  ;  indeed,  where  it  might  proceed  from  mur- 
derous intentions  even  ;  and  it  is  even  supposable,  that  the  treat- 
ment of  tliose  who  were  the  objects  of  the  services  should  be  such 
as  to  subject  the  grantor  to  indictment  for  manslaughter,  or  mur- 
der even,  and  possibly  to  ignominious  punishment,  and  to  death. 
To  afford  relief  in  such  a  case,  for  the  benefit  of  the  heirs,  would 
be  to  make  the  court  almost  partakers  in  the  offence. 

"  And  the  case,  upon  the  other  hand,  is  entirely  supposable,  and 
of  not  infrequent  occurrence,  where,  through  mere  inadvertence, 
a  technical  breach  may  have  occurred  in  the  non-performance  of 
some  unimportant  particular,  in  kind  or  degree,  where,  through 
perhaps  mere  difference  in  construction,  or  error  in  judgment,  one 
may  have  suffered  a  forfeiture  of  an  estate  at  law  of  thousands 
of  dollars  in  value,  where  the  collateral  service  was  not  of  a  dol- 
lar's value,  and  attended  with  no  serious  inconvenience  to  the 
grantee.  Not  to  afford  relief  in  such  case  would  be  a  discredit 
to  the  enlightened  jurisprudence  of  the  English  nation  and  those 
American  States  which  have  attempted  to  follow  the  same 
model."  1 

1  See,  also,  §  388;  Dunklee  v.  Adams  20  Vt.  415,  421  ;  Soper  v.  Guernsey,  71  Pa. 
St.  219. 

VOL.  1.  19  289 


CHAPTER   X. 

INSURANCE. 

1.  Insurable  Interests  of  Mortgagor  and  Mortgagee. 

396.  An  insurance  against  fire  is  a  contract  of  indemnity 
with  the  assured  against  any  loss  he  may  sustain  by  the  burning 
of  the  buildings.  He  must  have  some  interest  in  the  property 
insured,  as  owner,  mortgagee,  or  otherwise,  to  make  the  contract 
effectual.  If  he  never  had  any  interest,  or  if  at  the  time  of  the 
loss  he  had  ceased  to  have  any  interest,  he  cannot  claim  anything 
under  the  contract ;  for  he  has  suffered  no  loss.  He  may  upon 
transferring  his  interest  in  the  estate  at  the  same  time  transfer 
the  policy  of  insurance,  and  such  transfer,  being  assented  to  by 
the  underwriter,  constitutes  a  new  and  original  promise  to  the 
assignee  to  indemnify  him.  "But  such  undertaking,"  says  Shaw, 
C.  J.,  "  will  be  binding,  not  because  the  policy  is  in  any  way  in- 
cident to  the  estate  or  runs  with  the  land,  but  in  consequence  of 
the  new  contract."  ^ 

397.  Insurable  interests.  —  The  mortgagor  may  insure  the 
full  value  of  the  property,  and  recover  the  sum  insured,  if,  at  the 
time  of  the  loss,  he  had  the  right  of  redemption ;  and  it  matters 
not  that  the  mortgagee  has  taken  possession  of  the  premises.^ 
Neither  does  it  matter  that  his  right  in  equity  has  been  seized  and 
sold  on  execution  ;  his  insurable  interest  continues  so  long  as  he 
has  the  right  to  redeem  from  such  sale,  and  he  may  upon  a  loss 
recover  the  whole  amount  insured.^ 

The  owner  of  an   equity  of  redemption  obtained  a  policy  of 

1  Wilson  V.  Hill,  3  Met.  (Mass.)  66,  69  ;  HI.  327 ;  Illinois  F.  Ins.  Co.  v.  Stanton,  57 
Macomber  v.  Camb.  Mut.  F.  Ins.  Co.  8     111.  354. 

Cush.  (Mass.)  133;  Murdock  r.  Chenango        ^  Strong  v.  Manufacturers'  Ins.  Co.  10 
Co.  Mut.  Ins.  Co.  2  N.  Y.  210.  Pick.  (Mass.)  40. 

2  Stephens  v.  111.  Mut.  Fire  Ins.  Co.  43 

290 


INSURABLE   INTERESTS   OF   MORTGAGOR   AND   JIORTGAGEE.      [§  397. 

insurance  -which  contained  a  provision  that  he  should  not  be  enti- 
tled to  recover  any  greater  proportion  of  the  loss  than  the  amount 
insured  might  bear  to  the  whole  sum  insured  on  the  same  prop- 
erty, without  reference  to  the  solvency  or  liability  of  other  in- 
surers. The  owner  had  at  the  time  of  the  loss  another  policy  on 
his  interest  in  another  company  ;  and  the  mortgagee  had  a  policy 
on  his  interest  in  a  third  company.  The  jury  were  properly  di- 
rected to  apportion  the  loss  between  the  companies  having  insur- 
ance upon  the  mortgagor's  interest,  without  taking  into  account 
the  value  of  the  interest  of  the  mortgagee  insured  by  him  ;  that 
is  to  say  in  apportioning  the  loss,  the  value  of  the  equity  of  re- 
demption was  taken  as  a  basis,  and  not  the  value  of  the  entire 
propert}^^ 

The  insurable  interest  of  the  holder  of  the  mortgage  is  meas- 
ured by  the  value  of  his  lien,  if  this  does  not  exceed  the  value  of 
the  property .2  He  may  recover  according  to  his  interest  at  the 
time  of  the  loss.  It  does  not  matter  that  the  mortgage  is  not 
valid  at  law,  so  long  as  it  is  valid  in  equity,  as  in  the  case  of  a 
mortgage  by  a  husband  to  his  wife,  made  for  a  just  and  valuable 
consideration.^ 

The  mortgagee  may  insure  as  general  owner  without  disclosing 
his  interest  unless  this  is  inquired  about,  or  he  may  insure  his  in- 
terest as  mortgagee."*  When  an  inquiry  is  made  res]3ecting  his 
interest,  or  when  he  undertakes  to  make  a  disclosure  of  his  inter- 
est, his  representations  must  be  substantially  correct  or  the  policy 
will  be  void.  But  the  mere  fact  of  not  disclosing  his  interest  will 
not  have  that  effect. 

A  mortgagee,  who  upon  assigning  the  mortgage  has  indorsed 
the  note,  has  an  insurable  interest  in  the  mortgaged  property. 
And  that  interest  is  sufficiently  described  by  calling  him  "  mort- 
gagee," though  the  policy  provide  that  the  interest  of  the  assured, 

1  Tuck  V.  Hartford  F.  Ins.  Co.  56  N.  »  Mix  v.  Andes  Ins.  Co.  of  Cincinnati, 
H.  326.  9  Hun  (N.  Y.),  397. 

2  Sussex  Co.  IMut.  Ins.  Co.  r.  Woodruff,  *  Sussex  Co.  Mut.  Ins.  Co.  v.  Woodruff, 
2  Dutch.  (X.  J.)  541 ;  Kernochan  v.  N.  Y.  2  Dutch.  (N.  J.)  541 ;  Norwich  F.  Ins. 
Bowery  F.  Ins.  Co.  5  Duer  (N.  Y.).  1  ;  Co.  i'.  Boomer,  52  111.  442,  per  Mr.  Justice 
17  N.  Y.  428  ;  Tiliou  r.  Kingston  Mut.  Walker  :  "  Neither  reason,  authority,  nor 
Ins.  Co.  7  Barb.  (N.  Y.)  570  ;  Excelsior  the  contract  of  assurance,  so  far  as  we  can 
F.  Ins.  Co.  V.  Royal  Ins.  Co.  of  Liverpool,  see,  required  the  mortgagee,  unless  interro- 
7  Lans.  (N.  Y.)  138  ;  55  N.  Y.  343.  gated,  to  state  the  nature  of  his  interest  in 

the  property." 

291 


§  398.]  INSURANCE. 

whether  as  owner,  trustee,  mortgagee,  lessee,  or  otherwise  shall  be 
truly  stated.^ 

Upon  payment  of  the  mortgage  debt  the  mortgagee's  insurable 
interest  ceases ;  and  upon  part  payment  his  insurable  interest  is 
the  amount  of  the  debt  remaining  unpaid.^ 

398.  The  mortgagor's  interest  remains  insurable  so  long  as 
he  has  a  right  to  redeem  the  land.  It  continues  after  a  sale  of  his 
equity  of  redemption  on  execution  until,  his  right  to  redeem  from 
such  sale  is  barred  ;  and  he  may  recover  the  insurance  notwith- 
standing the  sale.^  What  the  value  of  his  redeemable  interest 
may  be  is  immaterial  ;  the  whole  sum  insured  may  be  recovered, 
if  this  does  not  exceed  the  value  of  the  property.*  In  like  man- 
ner the  mortgagor's  insurable  interest  continues  after  a  foreclosure 
sale  when  a  right  to  redeem  exists  after  such  a  sale,  so  long  as 
this  right  exists ;  and  when  there  is  no  right  of  redemption  after 
such  sale,  it  would  seem  that  he  retains  an  insurable  interest  until 
the  deed  is  delivered  in  pursuance  of  the  sale.  The  purchaser 
has  no  right  to  the  possession  of  the  property  until  he  receives  the 
deed,  and  in  the  mean  time  the  mortgagor  has  at  least  the  right  to 
occupy  or  to  collect  the  rents  ;  and  until  then,  the  sale  is  not  com- 
plete nor  is  the  right  to  redeem  conclusively  barred.^  Even  after 
a  mortgagor  has  conveyed  his  equity  of  redemption  subject  to  the 
mortgage,  or  his  grantee  has  assumed  the  payment  of  it,  he  re- 
tains an  insurable  interest,  because  he  is  liable  upon  the  mortgage 
note  to  the  holder  of  the  mortgage,  and  is  therefore  interested  in 
the  preservation  of  the  property  charged  with  the  payment  of  it.^ 
And  even  after  an  absolute  conveyance,  intended,  however,  as  a 
security  merely,  and  therefore  in  equity  a  mortgage,  the  mort- 
gagor retains  an  insurable  interest.'^ 

1  Williams  v.  Roger  Williams  Ins.  Co.  Ins.  Co.  5  N.  Y.  151,  it  was  held  that  the 
107  Mass.  377.  mortgagor  could  not  recover  foralosshap- 

2  Sussex  Co.  Insurance   Co.  v.  Wood-  pening  after  a  sale  under  a  decree  of  fore- 
ruff,  2  Dutch.  (N.  J.)  541.  closure,  and  before  the  delivery  of  the  deed, 

2  Strong!;.  Manufacturers' Ins.  Co.   10  having  then  no  insurable  interest ;  but  this 

Pick.  (Mass.)  40.  ruling  is  doubted  in  Cheney  v.  Woodruff, 

*  Strong   V.    Manufacturers'    Ins.    Co.  45  N.  Y.  98 ;   and  see  Brown  v.  Frost,  I 

supra.  Hoffm.  (N.  Y.)41. 

^  Gordon  v.  Mass.  F.  &  Marine  Ins.  Co.  ^    Waring    v.   Loder,    53   N.    Y.    581  ; 

2  Pick.  (Mass.)   249  ;  Buffalo  Steam  En-  Herkimer  v.  Rice,  27  N.  Y.  163. 

ginc  Works  V.  Sun  Mut.  Ins.   Co.   17  N.  ">  Hodges  r.  Tennessee  Marine  &  F.  Ins. 

Y.  401,  404.     In  McLaren  v.  Hartford  F.  Co.  8  N.  Y.  416. 
292 


BY   MORTGAGOR   FOR   BENEFIT   OF   MORTGAGEE.       [§§  399,  400. 

399.  When  application  should  state  incumbrance.  —  The 
existence  of  a  mortgage  upon  a  building,  for  the  insurance  of 
which  application  is  made,  is  a  material  fact,  if  inquired  about, 
and  any  misrepresentation  in  regard  to  the  existence  of  the  in- 
cumbrance or  the  amount  of  it  will  render  void  the  policy.^ 
Although  the  original  amount  of  the  mortgage  be  correctly  stated, 
a  failure  to  disclose  the  existence  of  accumulated  interest  to  a 
large  amount  has  been  held  to  invalidate  the  policy.^ 

Although  the  policy  be  taken  upon  the  interest  of  a  mortgagee, 
a  concealment  of  the  existence  of  prior  mortgages  held  by  him, 
when  their  disclosure  was  called  for,  avoids  the  policy.^ 

When  incumbrances  are  made  material  by  an  inquiry  in  rela- 
tion to  them,  the  applicant  is  not  bound  to  disclose  them.  It  is 
only  necessary  that  he  should  have  an  insurable  interest.* 

2.  Insurance  hy  the  Mortgagor  for  the  Benefit  of  the  Mortgagee. 

400.  Mortgagor's  agreement  to  insure  for  benefit  of  mort- 
gagee. —  When  the  mortgage  provides  that  the  mortgagor  shall 
keep  the  premises  insured  for  the  benefit  of  the  mortgagee,  and 
he  takes  out  a  policy  of  insurance  in  his  own  name,  which  is  not 
assigned  to  the  mortgagee  or  made  payable  to  him  in  any  way, 
the  mortgagee  is  regarded  as  having  an  equitable  lien  upon  the 
proceeds  of  the  policy ;  ^  and  if  his  mortgage  is  duly  recorded, 
the  covenant  for  insurance  is  regarded  by  some  authorities  as 
running  with  the  land,  and  as  giving  notice  of  the  right  to  others, 
so  that  no  subsequent  assignment  of  the  policy  would  affect  his 

1  Davenport  i'.  N.  E.  Mut.  F.  Ins.  Co.  6  Ins.  Co.  7  lb.  51  ;  Murphy  v.  People's  Eq. 
Cush.  (Mass.)  340.    Stating  the  mortgage  Mut.  F.  Ins.  Co.  7  lb.  239  ;  Smith  v.  Go- 
to be  about  $3,000,  when  it  was  in  fact  lumbia  Ins.  Co.  17  Pa.  St.  233. 
$4,000,  has  that  effect.    Hayward  v.  N.  E.  2  Jacobs  v.  Eagle   Mut.  F.  Ins.  Co.   7 
Mut.  F.  Ins.  Co.  10  lb.  444;  and  to  like  Allen  (Mass.),  132. 

effect,  Brown  v.  People's   Mut.  Ins.  Co.  '    3  Smith  f.  Columbia  Ins.  Co.  17  Pa.  St. 

1 1    lb.  280 ;  void  also  when  subject  to  a  253. 

preexisting  mortgage  not  recorded ;  Pack-  *  Norwich  Fire  Ins.  Co.  v.  Boomer,  52 

ard  V.  Agawam  Mut.  F.  Ins.  Co.  2  Gray,  111.  442. 

(Mass.)  334 ;  misrepresentation  as  to  the  "  Vernon  t;.  Smith,  5  Barn.  &  Aid.  1 

existence  of  mortgage  ;  Drape  v.  Charter  In  re  Sands  Ale  Brewing  Go.  3  Biss.  175 

Oak   F.  Ins.   Co.  2   Allen  (Mass.),  569  ;  Garter  v.  Rockett,  8  Paige  (N.  Y.),  437 

Bowditch  Mut.  F.  Ins.  Co.  v.  Winslow,  8  Cromwell  r.  Brooklyn  F.  Ins.  Go.  44  N. 

Gray  (Mass.),  38 ;  S.  G.  3  lb.  415  ;  Falis  Y.  42,  47,  per  Earl,  C. ;  Thomas  v.  Von 

t;.    Conway   Mut.    F.   Ins.    Go.    7    Allen  kapff,  6  Gill  &  J.  (Md.).  372  ;  Norwich  F, 

(Mass.),  46  ;  Towne  v.  Fitchburg  Mut.  F.  Ins.  Co.  v.  Boomer,  52  Ul.  442. 

293 


§  401.]  INSURANCE. 

rights.^  It  is  immaterial  in  this  respect  whether  the  policy  ex- 
isted at  the  time  of  the  mortgage,  or  was  afterwards  taken  ont 
by  the  mortgagor.^  The  mortgagee  in  such  case  stands  in  the 
position  of  an  assignee  of  a  chose  in  action  ;  he  must  enforce  his 
rights  in  the  name  of  the  mortgagor,  but  his  interest  is  sufficient 
to  enable  him  to  hold  the  proceeds  against  an  attaching  creditor 
or  any  subsequent  assignee. 

When  the  mortgagor,  in  a  mortgage  containing  such  a  covenant, 
has  procured  a  policy  in  his  own  name,  and  after  a  loss  has  deliv- 
ered the  policy  to  a  third  person  in  trust,  to  collect  the  insurance 
money,  and  pay  from  it  the  mortgage  debt,  the  mortgagee  there- 
upon has  an  equitable  lien  upon  the  policy  which  he  may  enforce, 
although  the  mortgagor  afterwards  obtains  possession  of  the  policy 
and  fraudulently  seeks  to  avail  himself  of  it  for  his  sole  benefit.^ 

When  a  lessee  has  effected  insurance  under  a  provision  in  his 
lease  that  a  policy  shall  be  taken  by  him,  and  the  money  payable 
under  it  shall  be  applied  in  restoring  the  premises,  the  benefit  of 
the  insurance  passes  by  a  mortgage  of  his  term  without  special 
mention  of  it.^ 

Where  the  agreement  to  keep  insurance  for  the  benefit  of  the 
mortgagee  was  merely  verbal,  but  the  mortgagor  had  acted  upon 
it  by  obtaining  such  insurance,  and  his  grantee  having  knowledge 
of  the  agreement  subsequently  surrendered  this  policy,  and  took 
another,  which  was  not  payable  to  the  mortgagee,  it  was  held  that 
he  was  nevertheless  entitled  in  equity  to  have  the  insurance  money 
applied  in  payment  of  the  mortgage  debt.^ 

401.  But  if  there  is  no  covenant  or  agreement  in  the  mort- 
gage that  the  premises  shall  be  insured  for  the  benefit  of  the  mort- 
gagee, the  mere  fact  that  his  mortgage  covers  the  property  insured, 
and  the  insured  is  personally  liable  for  the  debt,  gives  the  mort- 
gagee no  corresponding  claim  upon  the  policy  or  the  proceeds  of 
it.^     His  claim  is  then  no  better  than  that  of  any  creditor  of  the 

^  In  re  Sands  Ale  Brewing  Co.  supra.  Powles  v.  Innes,  11  M.  &  W.  10;   Carter 

2  Nichols  V.  Baxter,  5  R.  I.  491.  v.  Eockett,  8  Paige  (N.  Y.),  437  ;  Wilson  ■ 

^  Hazard   v.  Draper,  7  Allen    (Mass.),  v.  Hill,  3  Met.  66;  Columbian  Ins.  Co.  v. 

267.  Lawrence,  10  Pet.  507  ;  Carpenter  v.  Prov. 

*  Garden  v.  Ingram,  23  L.  J.  Ch.  478.  "Washington  Ins.  Co.  16  Pet.  495  ;  Vande- 

5  Miller  v.  Aid  rich,  31  Mich.  408.  graaff   v.    Medlock,   3    Port.    (Ala.)  389; 

®  Lynch  v.  Dalzell,  4  Bro.  Pari.  Cases,  Hancox    v.    Fishing    Ins.    Co.   3    Sumn. 

431;  Neale  v.  Reid,  3  Dowl.  &  Ry.  158;  132;   McDonald  v.  Black,  20  Ohio  185; 

294 


'       BY  MORTGAGOR  FOR  BENEFIT  OF  MORTGAGEE.   [§§  402,  403. 

mortgagor.  The  policy  is  strictly  a  personal  contract.  It  does 
not  attach  to  the  mortgage  or  to  the  realty.  It  has  even  been 
held,  that  a  mere  covenant  by  the  mortgagor  to  effect  insurance, 
without  any  stipulation  that  it  is  for  the  benefit  of  the  mortgagee, 
or  that  the  loss  shall  be  paid  to  him,  does  not  imply  that  the 
mortgagor  shall  apply  the  insurance  money  either  in  discharge 
of  the  mortgage  debt  or  in  restoration  of  the  property. ^  A  cove- 
nant to  effect  insurance  is  not  without  meaning,  or  without  ad- 
vantage to  the  mortgagee,  although  it  be  not  either  expressly  or 
impliedly  made  for  his  benefit. 

402.  There  is  an  equitable  lien  although  the  mortgage 
provides  that  the  mortgagee  himself  may  insure.  —  While  a 
mortgagee,  merely  as  such,  has  no  interest  in  or  claim  to  a  policy 
of  insurance  effected  by  the  mortgagor  upon  the  property  mort- 
gaged for  his  benefit,  and  each  has  an  insurable  interest,  and  may 
effect  separate  insurance,  yet,  one  insurance  for  the  benefit  of 
both  is  generally  provided  for  by  a  covenant  or  condition  that  the 
mortgagor  shall  keep  the  premises  insured  for  the  benefit  of  the 
mortgagee,  and  the  policy  should  then  be  taken  out  by  the  mort- 
gagor, payable  to  the  mortgagee  in  case  of  loss,  or  the  policy 
should  be  assigned  to  him.  But  if  the  mortgagor  afterwards  takes 
out  a  policy  in  his  own  name  and  fails  to  assign  it,  or  to  make 
it  payable  to  the  mortgagee,  such  a  contract  in  the  mortgage 
creates  an  equitable  lien  in  favor  o£  the  mortgagee,  upon  the 
money  due,  for  a  loss  under  such  a  policy,  to  the  extent  of  his 
interest,  although  the  mortgage  contained  a  provision  that  the 
mortgagee,  in  default  of  the  mortgagor's  insuring,  might  take  out 
a  policy  at  the  expense  of  the  mortgagor  and  under  the  security 
of  the  mortgage  for  the  premiums.  The  insurance  company,  and 
an  assignee  of  the  policy  on  notice  of  the  rights  of  the  mortgagee 
prior  to  the  assignment,  are  subject  to  the  equity.^ 

403.  How  far  this  equitable  lien  can  affect  another  person 
■  who  has  subsequently  acquired  a  specific  assignment  of  the  policy 

is  a  question  not  very  definitely  settled  by  the  authorities.^     In 

Plimpton  V.  Ins.  Co.  4-3  Vt.  497  ;   Nichols         s  Thomas    v.    Vonkapff,    6    Gill    &  J. 
t;.  Baxter,  5  R.  1.491.  (Md.)  372;  and  see   Giddings  v.  Seevers, 

1  Lees  V.  Whiteley,  L.  R.  2  Eq.  143.  24  Md.  363. 

2  Nichols  V.   Baxter,  5  R.  I.  491  ;  and 
see  Miller  v.  Aldrich,  31  Mich.  408. 

295 


§  403.]  INSURANCE. 

the  case  cited,  there  was  no  occasion  for  the  court  to  go  farther 
than  to  hold  that  this  equitable  lien  was  binding  upon  the  mort- 
gagor, and  after  his  decease  upon  his  legal  representatives.  Mr. 
Justice  Archer,  however,  in  delivering  the  opinion  of  the  court,  ex- 
pressed the  view  that  if  the  insurance  policy  or  fund  had  been 
passed  over  by  the  mortgagor,  for  a  valuable  consideration  with- 
out notice,  to  a  third  person,  the  right  of  such  third  person  would 
prevail  because  he  would  have  an  equity  also  ;  and  having  the  pos- 
session, he  would  be  protected,  on  the  principle  that  the  title  of 
one  who  has  both  a  fair  possession  and  an  equitable  title  shall  be 
preferred  to  that  of  a  mere  equitable  interest.  "  But  here,"  he 
says,  "  the  administrators  have  a  mere  naked  legal  right,  subject 
to  the  mortgagee's  equity.  That  the  administrators  represent  the 
creditors  cannot  change  the  character  of  this  equity  of  the  mort- 
gagee, or  weaken  its  efficacy.  The  particular  creditor  and  the 
general  creditor  stand  in  different  attitudes.  The  former  never 
trusted  to  the  personal  credit  of  the  mortgagor,  but  trusted  and 
looked  to  this  particular  fund,  to  satisfy  his  debt  or  give  him  se- 
curity for  it.  The  general  creditors  trusted  to  a  personal  credit 
alone.     What  has  produced  this  fund  ?    The  advance  of  money 

upon  its  faith But  again,  the  covenant  is  expressly  for 

the  benefit  of  the  particular  creditor,  not  for  the  benefit  of  the 
general  creditors ;  and  if  they  participate  in  it,  they  get  that  which 
they  never  could  have  looked  to,  and  the  extent  to  which  they  de- 
rive advantage  from  it,  to  the  same  extent  do  they  take  from  that 
creditor  who  looked  exclusively  to  it." 

In  another  aspect  of  the  case,  the  learned  judge  expressed  views 
which  go  far  towards  sustaining  the  position  that  the  lien  created 
in  favor  of  the  mortgagee  b}^  the  covenant  for  insurance  is  good 
against  one  who  might  afterwards  take  an  assignment  of  the  policy. 
"  That  this  is  a  covenant  running  with  the  land  can  we  think, 
scarcely  be  doubted.  The  covenants  to  repair  and  rebuild  are 
admittedly  so.  And  what  is  this,  but  in  effect  a  modified  cove- 
nant to  repair  and  rebuild  ?  The  insurance  is  to  be  kept  up,  so 
that  in  case  of  loss  by  fire,  the  sum  insured  shall  be  immediately 
applied  to  rebuilding  the  property  on  the  premises.  Being  of  this 
character,  it  would  run  with  the  land,  just  as  would  an  ordinary 
and  absolute  covenant  to  repair  or  rebuild  ;  and  running  with  the 
land,  the  record  of  the  mortgage  would  be  notice  to  all  the  gen- 
eral creditors,  and  they  would,  therefore,  have  no  just  pretensions 
296 


BY  MORTGAGOR  FOR  BENEFIT  OF  MORTGAGEE.   [§§  404,  405. 

to  participate  in  the  fund,  to  the  prejudice  of  the  particular  cred- 
itor." 

404.  Such  lien  valid  against  the  mortgagor's  assignee  in 
bankruptcy.  —  This  principle  was  acted  upon  in  a  recent  case  in 
the  District  Court  of  the  United  States  for  the  Northern  District 
of  Illinois,^  where  it  was  held  that  the  lien  created  by  such  a 
covenant  is  valid  as  against  the  mortgagor's  assignee  in  bank- 
ruptcy ;  and  there  was  an  intimation  that  a  specific  assignment 
to  a  particular  creditor  would  not  have  avoided  the  effect  of  the 
covenant.  Mr.  Justice  Blodgett  said  :  "  My  conclusion  then  is,  that 
the  covenant  by  the  bankrupt  to  insure  operated  to  assign  in 
equity  to  the  petitioner  the  benefit  of  any  insurance  efiiected  by 
the  bankrupt  on  the  mortgaged  property.  It  is  no  answer  to  say 
that  the  mortgagee  might  have  insured  in  default  of  insurance  by 
the  mortgagor,  because  the  mortgagor  had  insured,  and  his  insur- 
ance enured  at  once  to  the  benefit  of  the  mortgagee.  It  is  urged 
by  way  of  argument  in  behalf  of  one  creditor  —  the  Union  Na- 
tional Bank  —  that  if  all  or  part  of  these  policies  had  been  assigned 
to  that  creditor,  they  could  have  been  held  then  as  against  the  pe- 
titioner, and  that  the  assignee,  holding  for  the  benefit  of  all  cred- 
itors, occupies  the  same  position  ;  but  this  argument  is  fallacious, 
because  it  overlooks  or  ignores  the  fact  that  all  creditors  had  no- 
tice of  the  petitioner's  equitable  right  to  this  insurance  money, 
and  could  acquire  no  valid  interest  therein  as  against  him.  Eq- 
uity made  this  assignment  the  moment  the  insurance  was  effected 
if  the  mortgagor  did  not  do  it The  lien  is  neither  doubt- 
ful nor  general,  but  is  clear  and  specific.  It  is  but  carrying  out 
the  intent  of  the  parties,  and  giving  the  mortgagee  the  security 
he  had  bargained  for,  and  which  he  had  given  the  whole  world 
notice  he  was  entitled  to." 

405.  In  Maine  it  is  provided  by  statute  ^  that  a  mortgagee 
of  any  real  estate  shall  have  a  lien  upon  any  policy  of  insurance 
against  loss  by  fire  procured  thereon  by  the  mortgagor,  to  take 
effect  from  the  time  he  files  with  the  secretary  of  the  company  a 
written  notice,  briefly  describing  the   mortgage,  the  estate  con- 

1  In  re  The  Sands  Ale  Brewing  Co.  3     statute  annuls  all  provisions  of  a  policy  at 
Bis.  175.  variance  with  it.     Emery  i;.  riscataqua  F. 

2  Eev.  Stat.  1871,  c.  49,  §§  32-36.    The     &  M.  Ins.  Co.  52  Me.  322. 

297 


§  406.]  INSURANCE. 

veyed,  and  the  sum  remaining  unpaid  thereon.  If  the  mortgagor 
consents  in  writing  filed  with  the  secretary  that  the  whole  or  a 
part  of  the  sura  secured  by  the  policy  shall  be  applied  to  the 
payment  of  the  mortgage,  the  mortgagee's  receipt  shall  be  a  suffi- 
cient discharge.  If  the  mortgagor  does  not  so  consent,  the  mort- 
gagee may,  at  any  time  within  sixty  days  after  a  loss,  enforce 
his  lien  by  a  suit  against  the  mortgagor,  and  the  company  as  his 
trustee,  in  which  judgment  may  be  rendered  for  what  is  found 
due  upon  the  policy  notwithstanding  the  time  of  payment  of  the 
whole  sum  secured  by  the  mortgage  has  not  arrived. ^  The  amount 
recovered  is  first  applied  to  the  payment  of  the  costs  of  suit  and 
then  to  the  payment  of  the  mortgage  debt ;  and  the  balance,  if 
any,  shall  be  retained  by  the  company  and  paid  to  the  mort- 
gagor. When  two  or  more  mortgagees  claim  the  benefit  of  this 
lien,  their  rights  are  determined  according  to  the  priority  of  their 
claims  and  mortgages  by  the  principles  of  law.  When  a  mort- 
gagee claims  the  benefit  of  this  lien,  any  policy  of  insurance  pre- 
viously or  subsequently  procured  b}^  him  on  his  interest  as  mort- 
gagee shall  be  void,  unless  it  is  consented  to  by  the  company  in- 
suring the  mortgagor's  interest. 

406.  Loss  payable  to  the  mortgagee.  —  When  a  policy  is 
taken  in  the  name  fo  the  mortgagor,  but  the  insurance  is  made 
payable  to  the  mortgagee  in  case  of  loss,  the  contract  is  with  the 
mortgagor,  and  is  for  the  insurance  of  his  interest,  and  the  mort- 
gagee can  recover  only  in  case  the  mortgagor  could  have  done  so, 
unless  the  policy  contains  special  provisions  in  favor  of  the  mort- 
gagee.2  The  making  of  the  policy  payable  to  the  mortgagee  is 
regarded  as  an  appointment  to  receive  any  money  which  might 
become  due  from  the  insurers  by  reason  of  any  loss  which  the 
mortgagor  might  sustain.  It  is  still  a  contract  to  indemnify  the 
mortgagor  against  a  loss,  and  not  a  contract  to  indemnify  the 
mortgagee.  In  a  case  before  the  court  of  Appeals  of  New  York  ^ 
Mr.  Justice  Harris  described  the  rights  of  the  parties  in  such  a 

1  A  mortgagee  has  no  lien  upon  a  pol-  within  the  sixty  days.     Burns  v.  Collins, 

icy  procured  by  the  mortgagor  which  the  64  Me.  215. 

insurers  have  in   good  faith   settled   be-  2  Merwin  v.  Star  F.  Ins.    Co.  7   Hun 

fore  the   expiration   of  sixty   days   after  (N.  Y.),  659. 

loss,  and  before   any  notice  of  the  loss  ^  Qrosvenor  v.  Atlantic  Fire  Ins.  Co.  of 

has    been    filed    with    the    secretary,    al-  Brooklyn,  17  N.  Y.  391. 
though   such   notice   be    afterwards    filed 
298 


BY   MORTGAGOR   FOR   BENEFIT   OF   MORTGAGEE.  [§  407. 

case  as  follows  :  "  The  undertaking  to  pay  the  plaintiff  was  an 
undertaking  collateral  to  and  dependent  upon  the  principal  un- 
dertaking to  insure  the  mortgagor.  The  effect  of  it  was,  that  the 
defendants  agreed  that  whenever  any  money  should  become  due 
to  the  mortgagor  upon  the  contract  of  insurance,  they  would,  in- 
stead of  paying  it  to  the  mortgagor  himself,  pay  it  to  the  plain- 
tiff. The  mortsasror  must  sustain  a  loss  for  which  the  insurers 
were  liable,  before  the  party  appointed  to  receive  the  money 
would  have  a  right  to  claim  it.  It  is  the  damage  sustained  by 
the  party  insured,  and  not  by  the  party  appointed  to  receive  pay- 
ment, that  is  recoverable  from  the  insurers."  It  was  accordingly 
held  in  this  case  that  the  mortgagor  having  parted  with  his  inter- 
est in  the  property  before  the  loss,  the  mortgagee,  to  whom  the 
loss  was  payable,  could  not  recover.  Such  a  result  is  generally 
prevented  by  a  provision  in  favor  of  the  mortgagee,  that  no 
alienation  by  the  mortgagor  shall  affect  the  mortgagee's  right  to 
recover  ;  ^  and  frequently  protection  is  extended  to  the  mortgagee 
so  far  as  to  prevent  the  invalidating  of  the  policy  by  any  act  of 
the  mortgagor  or  owner  of  the  property  insured.^ 

Aside  from  any  saving  provision  in  favor  of  the  mortgagee, 
any  act  of  the  mortgagor,  either  in  procuring  the  policy  or  in 
dealing  with  the  property  afterwards,  which  would  avoid  the  policy 
as  to  him,  will  avoid  it  equally  as  to  the  mortgagee  :  as  by  a  mis- 
representation as  to  the  use  made  of  the  property  ;  ^  or  a  violation 
of  one  of  the  provisions  of  the  policy  in  procuring  over-insurance.* 

407.  Equivalent  to  assignment.  —  The  provision  of  a  policy 
that  the    loss,  if  any,  shall  be  paid  to  the  mortgagee,  operates  to 

1  Macomber  v.  Cambridge  Mut.  F.  Ins.  the  interest  of  the  mortgagor,  who  does 
Co.  8  Cush.  (Mass.)  13.3.  not  cease  to  be  a  party  to  the  original 

2  Springfield  F.  &.  M.  Ins.  Co.  v.  Allen,  contract,  and  any  act  of  his  which  would 
43  N.  Y.  389.  othenvise  avoid  the  insurance  will   have 

8  Merwin    v.  Star  F.  Ins.  Co.  7    Hun  the  same  eftcct,  althougli  the  property  is 

(N.  Y.),  659.  in  the  hands  of  the  mortgagee. 

*  Buffalo    Steam-engine  "Works  v.  Sun  If  an  insurer  assents  to  the  transfer  of 

Mut.  Ins.  Co.  17  N.  Y.  401.  an  insurance  from  a  mortgagor  to  a  mort- 

In  California  it  is  provided  that  where  gagee,  and,  at  the  time  of  his  assent,  im- 

a  mortgagor  of  property  effects  insurance  poses  further  obligations  on  the  assignee, 

in  his  own  name,  providing  that  the  loss  making  a  new  contract  with  him,  the  acts 

shall  be  payable  to  the  mortgagee,  or  as-  of  the  mortgagor  cannot  affect  his  rights, 

signs  a  policy  of  insurance  to  the  mort-  Civil  Code,  1872.     See  2541,  2542. 
gagee,  the  iusurance  is  deemed  to  be  upon 

299 


§  408.]  INSURANCE. 

give  the  mortgagee  precisely  the  same  rights  and  interest  in  the 
pohcy  which  he  would  have  if,  without  such  words,  the  mortgagor 
had  assigned  the  policy  to  him.^ 

408.  Who  may  bring  suit.  —  When  the  policy  is  taken  out 
by  the  mortgagor  in  his  name,  payable  in  case  of  loss  to  the 
mortgagee,  the  mortgagor  may,  with  the  assent  of  the  mort- 
gagee, sue  on  the  policy  in  his  own  name.  The  mortgagor  in 
such  case  is  the  party  for  whose  benefit  the  insurance  really 
operates,  whether  payment  be  made  to  himself  or  to  the  mort- 
gagee.^ Without  such  assent,  so  long  as  the  mortgage  debt  re- 
mains unpaid,  the  action  should  be  brought  by  the  mortgagee 
in  his  own  name,  or  he  should  be  joined  as  a  party .^  The  contract 
of  insurance  in  such  case  is  with  the  mortgagor,  notwithstanding 
the  loss  is  payable  to  the  mortgagee.  This  direction  in  the  pol- 
icy is  not  an  assignment  of  it,  and  although  it  is  assented  to  by 
the  insurer,  the  contract  with  the  mortgagor  is  not  thereby  merged 
or  extinguished.*  In  an  action  on  such  a  policy  by  the  mortgagor, 
the  insurer  may  plead  payment  to  the  mortgagee  as  performance. 
The  rights  of  the  mortgagee  and  of  the  insurers  as  well  may  be 
protected  in  all  cases  by  a  payment  of  the  money  into  court.^ 

When  a  mortgagor  effects  an  insurance,  payable  in  case  of 
loss  to  the  mortgagee,  the  former  holds  the  legal  title,  and  may 
maintain  an  action  on  the  policy  for  the  use  of  the  mortgagee.^ 
The  subsequent  payment  of  the  mortgage  debt  does  not  prevent 
a  recovery  against  the  insurance  company  ;  but  the  mortgagor 
may  still  recover  in  the  name  of  the  mortgagee  if  necessar}'^,  or  in 
his  own  name.^ 

At  common  law  the  assignee  of  a  policy  of  insurance  cannot 
maintain  an  action    upon  it  in  his  own  name,  and   unless  author- 

1  Grosvenor  v.  Atlantic  F.  Ins.  Co.  of  Barb.  (N.  Y.)  384;  31  How.Pr.  30;  Eous- 
Brooklyn,  5  Duer  (N.  Y.),  517;  17  N.  Y.  sel  v.  St.  Nicholas  Ins.  Co.  41  N.  Y.  Su- 
395 ;   Ennis   v.  Harmony    F.  Ins.    Co.   3     perior  Ct.  279. 

Bosw.  (N.  Y.)  51G ;  Luckey  v.  Gannon,  37  *  Martin  v.  Franklin  F.  Ins.  Co.  38  N. 
How.  (N.  Y.)  Pr.  134,  138.  J.  L.  140,  and  cases  cited;    Grosvenor  v. 

2  Turner  v.  Quincy  Ins.  Co.  109  Mass.     Atlantic  Ins.  Co.  17  N.  Y.  391. 

568  ;    Farrow  ;;.  Commonwealth  Ins.  Co.  ^  Martin  v.  Franklin  F.  Ins.  Co.  supra. 

18  Pick.  (Mass.)  53  ;  Patterson  v.  Triumph  6  Illinois  Fire  Ins.  Co.  v.  Stanton,  57  111. 

Ins.  Co.  64  Me.  500 ;  Jackson  v.  Farmers'  354. 

Ins.  Co.  5  Gray  (Mass.),  52.  7  Norwich  Fire  Ins.  Co.  v.  Boomer,  52 

^  Ennis   v.    Harmony    Fire   Ins.  Co.  3  111.  442 ;  Concord  Union  Mut.  F.  Ins.  Co. 

Bosw.  516  ;  Frink  v.  Hampden  Ins,  Co.  45  v.  Woodbury,  45  Me.  447. 

300 


BY   MORTGAGOR   FOR   BENEFIT   OF   MORTGAGEE.  [§  409. 

ized  SO  to  do  by  general  law  or  by  the  act  incorporating  the  insur- 
ance company,  the  suit  must  be  in  the  name  of  the  insured  for 
the  use  of  the  assignee.^ 

409.  Mortgagee  is  bound  to  receive  the  whole  insurance, 
and  apply  it  to  the  debt.  —  Where  a  policy  of  insurance  is  taken 
out  by  the  mortgagor,  payable  to  the  mortgagee  in  case  of  loss, 
the  insurer  is  bound  to  pay  the  whole  loss  to  the  mortgao-ee,  who 
is  holden  to  apply  tlie  amount  received,  so  far  as  is  necessary  to 
discharge  the  mortgage  ;  and  in  case  the  mortgage  debt  has  been 
previously  paid,  the  mortgagee  would  receive  the  sum  paid  for  the 
use  of  the  mortgagor.  In  such  case,  the  continued  existence  of 
the  mortgage  debt  is  not  essential  to  a  recovery  for  the  benefit  of 
the  mortgagor,  because  the  policy  is  his,  and  is  upon  his  interest, 
which  is  in  no  way  diminished  by  the  discharge  of  the  mortwao'e.^ 
If  the  policy  contain  a  provision  that  "  No  sale  of  the  j^roperty 
shall  affect  the  right  of  the  mortgagee  to  recover  in  case  of  loss, 
under  this  policy,"  and  a  sale  be  made  before  a  loss  occurs,  the 
mortgagee  is  still  bound  to  recover  the  amount  from  the  insurers 
and  to  apply  the  avails  first  to  the  discharge  of  the  mortgage  debt, 
and  the  surplus  to  the  benefit  of  the  mortgagor  ;  and  the  insur- 
ers, if  they  have  taken  a  transfer  of  the  mortgage  ujDon  paying 
the  loss,  stand  in  no  better  position  than  the  mortgagee,  as  they 
have  full  knowledge  of  the  existence  of  the  policy  and  of  its  pro- 
visions ;  and  the  purchaser  of  the  equity  of  redemption  is  enti- 
tled to  the  benefit  of  the  money  paid  on  the  loss,  and  may  redeem 
upon  paying  the  balance  due  upon  the  mortgage  after  deducting 
the  amount  payable  for  the  loss.^ 

If  it  be  provided  in  the  mortgage  that  the  mortgagor  shall 
insure  in  a  certain  sum,  for  the  benefit  of  the  mortgagee,  or  that 
the  mortgagee  may  cause  the  property  to  be  insured  at  the  ex- 
pense of  the  mortgagor,  and  that  the  premium  shall  be  covered 
by  the  mortgage  security,  then  in  effect  the  policy  is  furnished 
by  the  mortgagor,  and  any  money  recovered  under  it  enures  to 
him  in  going  towards  paying  his  debt  to  the  mortgagee.     The 

1  New  England  F.  &  M.  Ins.  Co.  v.  per  Shaw  C.  J. ;  Suffolk  F.  Ins.  Co.  v. 
Wetmore,  32  111.221;  Illinois  F.  Ins.  Co-  Boyden,  9  Allen  (Mass.),  12.3;  Clark  v. 
V.  Stanton,  supra.  Wilson,  10.3  Mass.  221  ;  Waring  y.  Loder, 

2  Concord  Union  Mut.  Fire  Ins.  Co.  v.  53  N.  Y.  581. 

Woodbury,  45  Me.  447;  King  v.  State  ^  Graves  y.  Hampden  Fire  Ins.  Co.  10 
Mutual  Fire  Ins.  Co.  7  Cush.    (Mass.)  1,     Allen  (Mass.),  281. 

301 


§§  410,  411.]  INSURANCE. 

mortgagee  receives  the  proceeds  to  apply  in  the  first  place  to  the 
payment  of  the  mortgage  debt,  and  then  he  is  trustee  for  the 
mortgagor  for  any  balance  left  in  his  hands.^  If  in  such  case 
the  mortgagee  pays  the  premium,  he  may  charge  the  amount  in 
his  account  against  the  mortgagor.  But  in  the  absence  of  any 
such  contract  the  mortgagee  could  not  charge  to  the  mortgagor  a 
premium  paid  by  him  for  insurance.  Any  insurance  obtained  by 
him  on  his  own  interest  is  for  his  own  benefit.  The  fiduciary  re- 
lation existing  between  the  mortgagee  and  mortgagor,  in  some 
limited  matters,  does  not  extend  to  such  an  insurance  of  the  mort- 
gagee's interest.  Before  entry  for  condition  broken,  that  relation 
is  a  matter  of  contract.^ 

410.  When  debt  not  due.  —  When  the  mortgaged  property 
is  insured  for  the  benefit  of  the  mortgagee  such  insurance  is  col- 
lateral to  the  debt,  and  money  recovered  from  the  insurance  is 
still  collateral  and  cannot  be  applied  by  the  mortgagee  to  pay- 
ment of  the  mortgage  debt  without  the  consent  of  the  mortgagor 
if  the  debt  be  not  due,  and  the  mortgagee  has  no  right  to  demand 
payment,  or  upon  default  to  convert  the  securities.  If  under 
such  circumstances  the  money  received  from  the  insurance  be  paid 
by  the  mortgagee  to  the  mortgagor,  for  restoring  the  premises  so 
as  to  make  them  as  valuable  as  before  the  fire,  a  second  mort- 
gagee has  no  equity  to  have  the  amount  so  received  applied  for  his 
benefit  in  reduction  of  the  debt  secured  by  the  first  mortgage.^ 

411.  Insurers  under  such  policy  have  no  claim  to  be  subro- 
gated. —  The  insurers  upon  paying  a  loss  upon  a  policy  taken  out 
b}^  the  mortgagor  payable  to  the  mortgagee  in  case  of  loss,  or 
assigned  to  him,  have  no  claim  to  be  subrogated  to  the  rights  of 
the  mortgagee.^  If  after  such  a  loss  the  mortgagee  brings  suit 
in  the  name  of  the  assured  upon  the  policies  and  obtains  judg- 
ment, but,  instead  of  enforcing  the  judgment,  enforces  payment 

1  Fowley  v.  Palmer,  5  Gray  (Mass.),  49;  *  Kernochan  v.  N.  Y.  Bowery  Ins.  Co. 
Mix  V.  Hotchkiss,  14  Conn.  32.  17  N.  Y.  428 ;  5  Duer,  1 ;  Mercantile  Mut. 

2  Dobson  I'.  Land,  8  Hare,  216 ;  4  De  G.  Ins.  Co.  v.  Calebs,  20  N.  Y.  173.  And  see, 
&  S.  575  ;  Bellamy  v.  Brickenden,  2  Jo.  &  also,  Washington  Fire  Ins.  Co.  v.  Kelly  32 
Hem.  137  ;  King  v.  State  Mutual  Fire  Ins.  Md.  421,  as  to  right  of  subrogation  upon 
Co.  7  Cush.   (Mass.)  1.  loss  pending  contract  of  sale. 

8  Gordon  v.  Ware  Savings  Bank,  115 
Mass.  588. 

302 


BY  MORTGAGOR   FOR   BENEFIT   OF   MORTGAGEE.      [§§  412,  413. 

of  the  mortgage  by  foreclosure,  the  assured  is  entitled  to  the  ben- 
efit of  the  judgment  against  the  insurers,  who  have  no  claim  to 
be  relieved  from  the  judgment.^ 

412.  Agreement  to  assign  to  insurers.  —  The  effect  of  an  in- 
surance procured  in  this  way  is  not  qualified  by  a  clause  in  the 
policy,  that  in  case  of  loss  the  assured  shall  assign  to  the  insurers 
an  interest  in  the  mortgage  equal  to  the  amount  of  the  loss  paid  ; 
or  by  an  assignment  made  in  pursuance  of  such  a  provision,  or  of 
any  subsequent  agreement  between  the  parties.  Under  such  an 
assignment  the  amount  of  the  loss  must  be  applied  in  reduction  of 
the  mortgage  debt,  and  the  insurers  can  hold  the  mortgage  only 
for  the  balance  of  the  debt  remaining  after  such  payment.^ 

Policies  of  insurance  now  generally  provide  that  in  case  of  the 
payment  of  any  loss  to  a  mortgagee,  whose  interest  is  insured,  the 
insurers  shall  be  subrogated  to  that  extent  to  his  rights  under  the 
mortgao^e.^ 


^a"'0^ 


413.  When  a  policy  protects  the  mortgagee  against  the  acts 
of  the  owner  of  the  property  in  derogation  of  the  policy,  and 
provides  for  the  subrogation  of  the  insurers  to  the  rights  of  the 
mortgagee,  in  case  of  payment  to  the  mortgagee  for  a  loss  under 
the  policy  which  the  insurers  would  not  have  been  liable  to  pay 
to  the  owner,  the  contract,  from  being  primarily  one  insuring  the 
mortgagor,  and  making  the  mortgagee  an  equitable  assignee,  is  by 
these  special  provisions,  upon  the  happening  of  certain  events,  re- 
solved in  effect  into  an  insurance  of  the  interest  of  the  mortgagee, 
as  such,  and  into  a  personal  contract  with  the  mortgagee,  in  which 
the  mortgagor  has  no  interest.^  The  insurance  money,  when  paid 
under  such  a  policy  to  the  mortgagee,  is  not  a  payment  to  that 
extent  of  the  mortgage  debt,  but  is  in  effect  a  payment  by  the 
insurers  towards  the  purchase  of  the  mortgage. 

When  the  policy  is  made  paj^able  to  a  mortgagee  he  is  generally 
protected  against  the  acts  of  the  owner  of  the  property  by  a  pro- 
vision of  the  policy  that  it  shall  not  be  forfeited  by  any  alienation 

1  Robert  v.  Traders'  Ins.  Co.  17  Wend.  ^  Springfield  Fire  &  Marine  Ins.  Co.  i;. 
(N.  Y.)  G.31  ;  reversing  S.  C.  9  lb.  404.  Allen,  43  N.  Y.  389. 

2  Foster  v.  Van  Reed,  5  Hun  (N.  Y.),  *  Springfield  F.  &  M.  Ins.  Co.  v.  Allen, 
821 ;  Waring  v.  Loder,    53    N.    Y.   581  ;  43  N,  Y.  389. 

Davis   V.    Quincy  Mut.    F.   Ins.   Co.   10 
Allen,  Mass.  113. 

303 


§  414.]  INSURANCE. 

or  other  act  on  liis  part.  If  a  policy  so  providing  also  contain  a 
further  provision  that  in  case  of  a  payment  of  the  loss  to  the  mort- 
gagee, the  insurer  shall  be  entitled  to  an  assignment  of  the  mort- 
gage, upon  the  happening  of  a  loss  and  the  assignment  of  the 
policy  to  the  insurers,  it  will  be  a  valid  security  in  their  hands  if 
the  mortgagor  or  owner  of  the  property,  to  whom  the  policy  was 
issued,  has  alienated  the  property  prior  to  the  loss,  so  that  the 
policy  has  become  void  as  to  him,  though  saved  from  forfeiture  as 
against  the  mortgagee.  The  principal  party  insured  then  has  no 
right  to  claim  the  sum  paid  upon  the  loss  as  a  payment  on  the 
mortgage  debt.^ 

414.  "When  mortgagee  may  charge  for  insurance  obtained 
by  him.  —  Insurance  effected  by  a  mortgagee  upon  the  mortgaged 
estate,  without  any  provision  authorizing  him  or  obligating  the 
mortgagor  to  do  so,  cannot  be  charged  to  the  mortgagor.^  But  if 
the  mortgage  contains  a  condition  that  the  mortgagor  shall  "  keep 
the  buildings  standing  on  the  land  aforesaid  insured  against  fire, 
in  a  sum  not  less  than  twenty-five  hundred  dollars,  for  the  benefit 
of  the  said  mortgagee,"  and  the  mortgagor  fails  to  insure,  the 
mortgagee  may  effect  insurance,  and  is  entitled  to  credit  for  the 
premiums  paid  by  him.^  The  mortgagor,  having  failed  to  comply 
with  his  contract,  cannot  take  advantage  of  his  own  wrong  and 
decline  to  pay  the  premium.  The  condition  that  the  mortgagor 
should  insure  distinguishes  the  case  from  that  class  of  cases  where 
the  mortgagee  insures  his  own  interest  in  the  mortgaged  premises  ; 
such  insurance  he  must  effect  at  his  own  expense.  Then  he  is 
not  holden  to  account  for  the  proceeds.  But  when  the  mortgage 
gives  the  mortgagee  the  right  to  insure  at  the  expense  of  the  mort- 
gagor, and  he  does  so,  and  charges  premium  to  the  mortgagor, 
the  amount  received  from  the  insurance  must  be  accounted  for  to- 
wards the  payment  of  tlie  mortgage  debt.  Although  it  may  be 
difficult  to  prove  that  the  mortgagee  in  any  particular  case  effected 
the  insurance  under  the  provision  of  the  mortgage  and  at  the  ex- 
pense of  the  mortgagor,  so  that  he  is  accountable  for  the  proceeds, 

1  Springfield  Fire  &  Marine  Ins.  Co.  v.  259  ;  Faure  v.  Winans,  Hopk.  (N.  Y.)  Ch. 
Allen,  supra.  283. 

2  Dobson  ;;.  Land,  8  Hare,  216;  4  De  "  Fowley  r.  Palmer,  .5  Gray  (Mass.), 
G.  &  S.  .575;  3  Bennett's  F.  Ins.  Cases,  549.  The  insurance  in  this  case  was  pay- 
147,  n.    Saunders  v.  Frost,  5  Pick.  (Mass.)  able  to  the  mortgagee  "  for  whom  it  may 


concern. 


304 


BY   MORTGAGOR   FOR   BENEFIT   OF   MORTGAGEE.      [§§  415,  416. 

the  difficulty  is  one  brouglit  upon  the  mortgagor  by  his  own  fail- 
ure to  perform  his  contract ;  ^  and  if  he  has  no  such  proof  he  must 
take  the  mortgagee's  word  for  it. 

The  mortgagor  will  not  be  allowed  for  insurance  effected  by 
himself,  in  the  absence  of  any  stipulation  in  the  mortgage  that  the 
mortgagor  shall  keep  the  property  insured  for  the  mortgagee's 
benefit,  or  that  premiums  of  insurance  paid  by  the  mortgagee 
shall  be  a  chai-ge  upon  the  property .^ 

415.  Rule  is  the  same  under  a  condition  to  keep  insurance. 
The  rule  is  the  same  when  the  agreement  respecting  insurance 
is  not  in  the  form  of  a  direct  covenant  to  keep  the  premises  in- 
sured, but  is  a  part  of  the  condition  of  the  mortgage  ;  as  when 
the  condition  was,^  that  if  the  grantor  should  repay  the  loan, 
"  and,  until  such  payment,  keep  the  buildings  standing  on  the 
land  aforesaid  insured  against  fire,  in  a  sum  not  less  than  $250, 
for  the  benefit  of  the  mortgagee,  and  payable  to  him  in  case  of 
loss,  at  some  insurance  office  approved  by  him  ;  or,  in  default^ 
thereof,  shall,  on  demand,  pay  to  said  mortgagee  all  such  sums 
of  money  as  the  said  mortgagee  shall  reasonably  pay  for  such  in- 
surance, with  interest,"  then  the  deed  should  be  void. 

In  Connecticut  it  is  provided  by  statute  that  premiums  paid  by 
the  mortgagee  of  any  property,  for  insuring  his  interest  therein 
against  loss  by  fire,  shall  be  deemed  to  be  a  part  of  the  mortgage 
debt,  and  shall  be  refunded  to  him  before  he  can  be  required  to 
release  his  title.^ 

416.  Mortgagee  charging  for  insurance  liable  as  insurer.  —  A 
mortgagee  who  charges  the  mortgagor  with  the  premiums  for  an 
insurance  for  a  certain  time  as  part  of  the  loan,  and  undertakes 
to  procure  the  insurance,  is  bound  to  keep  the  policies  alive  during 
that  period,  and  he  is  himself  liable  as  an  insurer  if  in  consequence 

1  Per  Chief  Justice  Shaw,  in  Fowley  v.  *  Gen.  Stat.  1875,  p.  358.     See  English 

Palmer,  supra.  statute  providing  for  adding  to  the  princi- 

-  Clark   V.  Smith,  Saxt.    (N.   J.)    121,  pal  sum  secured   premiums   paid   by  the 

137  ;  Saunders  v.  Frost,  5  Pick.   (Mass.)  mortgagee   for  insurance,  which,  by    the 

259;  Faure  v.  Winans ;    Hopk.    (N.  Y.)  terms  of  the  deed,  should  be  obtained  by 

Oh.  283  ;  Pierce  v.  Fauncc,  53  Me.  351.  the  mortgagor,  23  &  24  Vict.  c.  145,  §§  1 1, 

8  Nichols  r.  Baxter,  5  R.  I.  491.     The  12. 
form  of  mortgage  in  this  case  is  the  ordi- 
nary form  used  in  Massachusetts. 

VOL.  I.                           20  305 


§§  417,  418.]  INSURANCE. 

of  his  neglect  to  pay  the  premiums  the  policies  expire.^  The  ex- 
tent of  the  liability  is  the  same  as  an  insurance  company's  would 
have  been  had  the  policies  been  continued  by  the  payment  of  the 
premiums. 

417.  A  return  premium  upon  a  policy  procured  by  the  mort- 
gagor and  assigned  to  the  holder  of  a  mortgage,  which  is  subse- 
quently paid  by  a  purchaser  of  the  equity  of  redemption,  in  ac- 
cordance with  his  agreement  with  the  mortgagor  to  assume  and 
pay  it,  belongs  to  the  mortgagor,  and  he  may  recover  the  amount 
of  it  from  any  one  else  who  collects  it.^ 

3.     Insurance  ly  the  Mortgagee. 

418.  When  insurance  obtained  by  mortgagee  is  presumed 
to  be  under  the  covenant  for  insurance.  —  When  the  mortgage 
contains  the  usual  covenant  for  insurance  on  the  part  of  the  mort- 
gagor, and  an  agreement  that,  in  case  of  his  failure  to  do  so,  the 
mortgagee  or  his  representatives  may  make  such  insurance,  and 
the  mortgage  shall  secure  the  repayment  of  the  premiums,  an  in- 
surance effected  by  the  mortgagee  is  presumed  to  be  under  this 
authority,  although  it  be  "  on  his  interest  as  mortgagee."  ^  The 
policy  taken  under  such  provision  in  the  mortgage  is  farther  se- 
curity of  the  mortgage  debt  in  the  hands  of  the  mortgagee,  and 
the  insurance  money,  when  paid,  must  be  applied  in  satisfaction 
of  that  debt.  In  a  case  before  the  Court  of  Appeals  in  New  York,* 
upon  a  policy  effected  under  such  a  provision  in  the  mortgage, 
Mr.  Justice  Andrews  said :  "  The  authority  given  in  the  mort- 
gage was  an  authority  to  the  mortgagee  to  procure  an  insurance 
for  the  benefit  of  both  parties.  This  is  the  fair  interpretation. 
It  was  immaterial  to  the  mortgagor  whether  the  insurance  was  in 
his  name  or  in  the  name  of  the  mortgagee,  if  the  avails  of  it  in 
case  of  loss  should  apply  in  reduction  of  the  debt.  The  mortgagee 
had  no  interest  to  procure  an  insurance  limited  to  his  own  protec- 
tion merely,  where  the  expense  was  to  be  paid  by  the  other  party 
and  was  secured  on  the  land."  There  is  an  implied  obligation 
arising  from  the  procuring  of  the  insurance  upon  the  request  of 

1  Soule  V.  Union  Bank,  45  Barb.  (N.  3  Foster  v.  Van  Reed,  5  Hun  (N.  Y.), 
Y.)  Ill  ;  30  How.  Pr.  105.  321. 

2  Merrifield  v.  Baker,  9  Allen   (Mass.),  ^  Waring  v.  Loder,  53  N.  Y.  581. 
29  ;  Felton  v.  Brooks,  4  Cush.  (Mass.)  203. 

306 


BY    THE    MORTGAGEE.  [§  419. 

the  mortgagor,  or  at  liis  expense,  that  the  insurance  money  when 
paid  shall  be  applied  to  the  mortgage  debt.^  Whenever  the  in- 
surance has  been  effected  at  the  request,  or  by  the  authority  of 
the  mortgagor,  or  at  his  expense,  or  under  circumstances  that 
would  make  him  chargeable  with  the  premium,  he  is  entitled  to 
have  the  money  paid  on  the  policy  applied  to  the  extinguishment 
of  his  debt.^  The  insurance  having  been  paid  for  by  the  mort- 
gagor, though  taken  in  the  name  of  the  mortgagee  as  if  absolute 
owner,  the  fact  that  the  mortgagor  has  paid  the  debt  secured  by 
the  mortgage  does  not  prevent  a  recovery  for  a  loss  against  the 
insurers.  The  mortgagor  in  such  case  is  the  beneficial  party,  and 
has  the  right  to  recover  in  the  name  of  the  mortgagee.^ 

419.  Insurance  of  mortgagee's  interest  is  not  an  insurance 
of  the  mortgage  debt.  —  It  has  been  said  in  some  cases  that  an 
insurance  of  a  mortgage  interest  is  an  insurance  of  the  mortgage 
debt,  or  at  least  an  indemnity  against  the  loss  of  that  debt  by  a 
loss  or  damage  to  the  property  mortgaged,  and  therefore  that  ij: 
the  mortgaged  property  after  the  loss  is  still  enough  in  value  to 
pay  the  debt,  there  has  been  in  effect  no  loss.'*  This  subject  was 
fully  examined  by  Mr.  Justice  Folger,  in  a  recent  case  before  the 
Court  of  Appeals  in  New  York,^  and  he  clearly  shows  that  the 

1  Holbrook  v.  Am.  Ins.  Co.  1  Curtis,  that  they  will  pay  such  loss  or  damage  as 
193;  Buffiilo  Steam-engine  Works  u.  Sun  happens  by  fire  to  property.  They  are 
Mut.  Ins.  Co.  17  N.  Y.  406;  Clinton  v.  limited  to  this.  It  was  not  readily  that  it 
Hope  Ins.  Co.  45  N.  Y.  454.  was  first  held  that  they  could  agree,  with 

2  Honore  v.  Lamar  F.  Ins.  Co.  51  111.  a  mortgagee  or  lienor  of  property,  to  re- 
409.  imburse  to  him  the  loss  caused  to  him  by 

3  Norwich  F.  Ins.  Co.  i;.  Boomer,  52  fire.  He  is  not  the  owner  of  it ;  how  then 
HI.  442.  can  he  insure  it"?  was  the  query.    And  the 

*  Smith  V.  Col.  Ins.  Co.  17  Pa.  St.  253,  efifort  was  not  to  enlarge  the  power  of  the 

per  Gibson,  J. ;  ^tna  F.  Ins.  Co.  v.  Ty-  insurer  so  that  it  might  insure  a  debt,  but 

ler,  16    Wend.   385,   397,    per  Chancellor  to  bring  the  lienor  within  the  scope  of  that 

Walworth ;  Carpenter  v.  Providence,  &c.  power,  so  that  the   property  might  be  in- 

Ins.  Co.  16  Peters,  495,  501,  per  Story,  J. ;  sured  for  his  benefit.     And  it  was  done  by 

Kernochan  v.  N.  Y.  Bowery  Ins.  Co.  17  holding  that,  as  his   security  did  depend 

N.   Y.  428,  per  Strong,  J. ;  Mathewsou  v.  upon  the  safety  of  the  property,  he  had  an 

Western  Assurance  Co.  4  L.  Can.  Jur.  57.  interest   in   its  preservation,  and  so  had 

^  Excelsior  F.  Ins.  Co.  v.  Royal  Ins.  such  interest  as  that  he  miglit  take  out  a 
Co.  of  Liverpool,  55  N.  Y.  343,  357,  per  policy  upon  it  against  loss  by  lire,  without 
Folger,  J.  "  Fire  underwriters  in  these  meeting  the  objection  that  it  was  a  wager- 
days,  in  this  state,  are  the  creatures  of  ing  policy.  The  policy  did  not,  therefore, 
statute,  and  have  no  rights,  save  such  as  become  one  upon  the  debt,  and  for  indem- 
the  state  gives  to  them.     They  may  agree  nification   against  its  loss  ;   but   still  re- 

307 


§  420.] 


INSURANCE. 


insurance  of  a  mortgage  interest  is  not  an  insurance  of  the  debt, 
but  of  the  interest  of  the  mortgagee  in  the  property  upon  the 
safety  of  which  depends  his  security,  and  that  upon  the  liappening 
of  a  loss  the  insurer  is  bound  to  make  good  the  loss  without  regard 
to  the  value  of  the  property  remaining. 


420.  Insurer  subrogated  to  rights  of  mortgagee.  —  It  being 
settled  that  an  insurance  made  by  a  mortgagee  of  his  own  in- 
terest, at  his  own  expense,  and  upon  his  own  motion,  is  an  insur- 
ance of  his  interest  in  the  property,  and  not  of  the  debt  secured, 
and  that  the  insurers  are  liable  to  pay  him  the  whole  amount  of 
the  damage  to  the  property,  it  remains  to  be  considered  whether 
either  the  mortgagor  can  claim  that  the  payment  shall  be  applied 


mained  one  upon  the  property,  and  against 
loss  or  damage  to  it.  It  is  doubtless  true 
as  is  said  by  Gibson,  J.,  in  17  Term,  supra, 
that  in  effect  it  is  the  debt  which  is  in- 
sured. It  is  only  as  an  effect,  however  ; 
an  effect  resulting  from  the  primary  aet  of 
insurance  of  the  property  which  is  the  se- 
curity for  the  debt.  It  is  the  interest  in 
the  property  which  gives  the  right  to  ob- 
tain insurance,  and  tiie  ownership  of  the 
debt,  a  lien  upon  the  property,  creates  that 
interest.  The  agreement  is  usually,  as  it 
is  in  fact  in  this  case,  for  insuring,  from 
loss  or  damage  by  fire,  the  property.  The 
interest  of  the  mortgagor  is  in  the  whole 
property,  just  as  it  exists,  undamaged  by 
fire  at  the  date  of  the  policy.  If  that 
property  is  consumed  in  part,  though  what 
there  be  left  of  it  is  equal  in  value  to  the 
amount  of  the  mortgage  debt,  the  mort- 
gage interest  is  affected.  It  is  not  so 
great,  or  so  safe,  or  so  valuable,  as  it  was 
before.  It  was  for  indemnity  against  this 
very  detriment,  this  very  decrease  in  value, 
that  the  mortgagee  sought  insurance  and 
paid  his  premium. 

"  To  say  that  it  is  the  debt  which  is  in- 
sured against  loss,  is  to  give  to  most,  if 
not  all,  fire  insurance  companies  a  power 
to  do  a  kind  of  business  which  the  law 
and  their  charter  do  not  confer.  They  are 
privileged  to  insure  property  against  loss 
or  damage  by  fire.  They  are  not  privi- 
leged to  guarantee  the  collection  of  debts. 

308 


If  they  are,  they  may  insure  against  the 
insolvency  of  the  debtor.  No  one  will 
contend  this ;  and  it  will  be  said,  it  is  not 
by  a  guaranty  of  the  debt,  but  an  indem- 
nity is  given  against  the  loss  of  the  debt 
by  an  insurance  against  the  perils  to  the 
property  by  fire.  This  is  but  coming  to 
our  position  ;  that  it  is  the  property  which 
is  insured  against  the  loss  by  fire,  and 
the  protection  of  the  debt  is  the  sequence 
thereof.  As  the  property  it  is  which  is 
insured  against  loss,  it  is  the  loss  which 
occurs  to  it  which  the  insurer  contracts  to 
pay,  and  for  such  loss  he  is  to  pay  within 
the  limit  of  his  liability,  irresjieetive  of  the 
value  of  the  property  destroyed.  So  as  to 
the  remark,  that  it  is  the  capacity  of  the 
property  to  pay  the  debt  which  is  insured. 
This  is  true  in  a  certain  sense;  but  it  is  as 
a  result  and  not  as  a  primary  undertaking. 
The  undertaking  is  that  the  property  shall 
not  suffer  by  loss  by  fire;  that  is,  in  effect, 
that  its  capacity  to  pay  the  mortgaged 
debt  shall  not  be  diminished.  When  an 
appreciable  loss  has  occurred  to  the  prop- 
erty from  fire,  its  ca]iacity  to  pay  the  mort- 
gaged debt  has  been  affected;  it  is  not  so 
well  able  to  pay  the  debt  which  is  upon  it. 
The  mortgage  interest,  the  insurable  in- 
terest, is  lessened  in  value,  and  the  mort- 
gagee, the  insuree,  is  affected,  and  may 
call  upon  the  insurer  to  make  him  as  good 
again  as  he  was  when  he  effected  bis  in- 
surance." 


BY    THE   MORTGAGEE.  [§  421. 

in  discharge  of  his  debt,  or  the  insurers  can  claim  the  mortgage 
security  by  assignment  or  subrogation. 

In  the  first  place,  it  is  the  undisputed  doctrine  of  all  the  cases 
that  the  mortgagor  himself  can  claim  no  benefit  from  such  in- 
surance.i  The  question  in  dispute  is,  whether  upon  payment  of 
the  loss  under  such  a  policy,  the  insurer  shall  be  subrogated  to 
the  security  held  by  the  mortgagee,  or  whether  he  may,  after 
having  collected  the  insurance  money,  proceed  to  collect  the  mort- 
gage debt  from  the  mortgagor,  and  the  property  mortgaged. 

The  general  rule  and  the  weight  of  authority  is,  that  the  in- 
surer is  thereupon  subrogated  to  the  rights  of  the  mortgagee 
under  the  mortgage.  This  is  put  upon  the  analogy  of  the  situ- 
ation of  the  insurer  to  that  of  a  surety .^  The  mortgagor  and 
mortgagee  have  each  an  insurable  interest.  If  the  mortgagee 
obtain  insurance  on  his  own  account,  and  the  premium  is  not  paid 
by  or  charged  to  the  mortgagor,  he  cannot  claim  the  benefit  of  a 
payment  of  the  policy  ;  but  the  insurer  is  entitled  to  be  subro- 
gated to  the  claim  of  the  mortgagee,  and  may  recover  upon  the 
note.^ 

Upon  this  principle  it  has  been  held  that,  upon  payment  of  the 
mortgage  debt,  the  equitable  liability  of  the  mortgagee  to  the 
mortgagor  for  the  money  received  from  the  insurers  is  a  suflB.cient 
consideration  to  support  a  promise  by  the  mortgagee  to  allow 
the  amount  secured  by  him  upon  the  mortgage  debt,  and  that  an 
action  may  be  maintained  on  such  promise.'^ 

421.  King  V.  State  Mutual  Fire  Insurance  Co.  —  If  insur- 
ance be  effected  upon  the  interest  of  the  assured  as  mortgagee, 
at  his  own  expense,  the  insurers,  upon  payment  of  a  loss  and  ten- 
der of  the  balance  due  on  the  mortgage,  have  in  some  courts  been 
held  not  entitled  to  have  the  mortgage  assigned  to  them,  or  to  be 

1  Dobson  V.  Land,  8  Hare,  216  ;  4  De  ^  Excelsior  F.  Ins.  Co.  v.  Royal  Ins.  Co. 
G.  &  Sm.  575 ;  Bellamy  v.  Brickenden,  2  of  Liverpool,  55  N.  Y.  343 ;  Kernochan 
Johns.  &  Hem.  137  ;  Russell  v.  Southard,  v.  N.  Y.  Bowery  F.  Ins.  Co.  17  N.  Y.  428 ; 
12  How.  139,  157;  "White  v.  Brown,  2  ^tna  Ins.  Co.  r.  Tyler,  16  Wend.  (N.  Y.) 
Cush.  (Mass.)  412;  Fowley  v.  Palmer,  5  397;  Concord  Union  Mut.  F.  Ins.  Co.  v. 
Gray  (Mass.),  549;  Clark  v.  Wilson,  103  Woodbury,  45  Me.  447  ;  Sussex  Co.  In- 
Mass.  219,  221 ;  Ely  v.  Ely,  80  111.  532.  surance  Co.  v.  Woodruff,  2  Dutch.  (N.  J.) 

2  Honore  v.  Lamar  F.  Ins.  Co.  51  111.  541  ;  Callahan  v.  Linthicum,  43  Md.  97, 
409  ;  Sussex  Co.  Ins.  Co.  v.  AVoodruff,  2  and  cases  cited. 

Dutch.  (N.  J.)  555;  Norwich  Fire  Ins.  *  Callahan  v.  Linthicum,  43  Md.  97, 
Co.  I'.  Boomer,  52  111.  442.  Alvey  and  Grason,  JJ.,  dissenting. 

309 


§  421.] 


INSURANCE. 


subrogated  to  the  rights  of  the  assured  under  the  mortgage,  either 
at  law  or  in  equity.  The  mortgagee's  insurance  is  not  an  insur- 
ance of  the  debt,  although  the  amount  of  that  is  the  measure  of 
his  insurable  interest  in  the  property.^  The  insurer  has  no  inter- 
est in  the  mortgage  debt ;  and  there  is  no  privity  between  him  and 
the  mortgagor.  Neither  can  the  mortgagor  claim  any  part  of  the 
mone}^  so  recovered  as  a  payment  of  the  mortgage  debt,  in  whole 
or  in  part ;  but  he  must  still  pay  the  whole  mortgage  debt  to  the 
mortgagee.2     If,  however,  the  mortgage  debt  was  paid,  and  the 


1  King  V.  State  Mutual  Fire  Ins.  Co.  7 
Cush.  (Mass.)  1.  In  this  case  Ciiief  Jus- 
tice Shaw  sail! :  — 

"  The  case  supposed  is  this  :  A  man 
makes  a  loan  of  money,  and  takes  a  bond 
and  mortgage  for  security.  Say  the  loan 
is  for  ten  years.  He  gets  insurance  on  his 
own  interest,  as  mortgagee.  At  the  expi- 
ration of  seven  years  the  buildings  are 
burnt  down ;  he  claims  and  recovers  a 
loss  to  the  amount  insured,  being  equal  to 
the  greater  part  of  the  debt.  He  after- 
wards secures  the  amount  of  his  debt 
from  the  mortgagor,  and  discharges  his 
mortgage.  Has  he  received  a  double  sat- 
isfaction for  one  and  the  same  debt  ? 

"  He  surely  may  recover  of  the  mort- 
gagor, because  he  is  his  debtor,  and  on  good 
consideration  has  contracted  to  pay.  The 
money  received  from  the  underwriters  was 
not  a  payment  of  his  debt ;  there  was  no 
privity  of  contract  between  the  mortgagor 
and  the  underwriters;  he  had  not  con- 
tracted with  them  to  pay  it  for  him,  on 
any  contingency;  he  had  paid  them  noth- 
ing for  so  doing  They  did  not  pay  be- 
cause the  mortgagor  owed  it ;  but  be- 
cause they  had  bound  themselves,  in  the 
event  which  has  happened,  to  pay  a  cer- 
tain sum  to  the  mortgagee. 

"But  the  mortgagee,  when  he  claims  of 
the  underwriters,  does  not  claim  the  same 
debt.  He  claims  a  sum  of  money  due  him 
upon  a  distinct  and  independent  contract, 
upon  a  consideration,  paid  by  himself,  that 
upon  a  certain  event,  to  wit,  the  burning 
of  a  particular  house,  they  will  pay  him  a 
sum  of  money  expressed.  Taking  the 
risk  or  remoteness  of  the  contingency  into 

310 


consideration,  in  other  words,  the  com- 
puted chances  of  loss,  the  premium  paid 
and  the  sum  to  be  received  are  intended 
to  be,  and  in  theory  of  law  are,  precisely 

equivalent Suppose  —  for,  in 

order  to  test  a  principle,  we  may  put  a 
strong  case  —  suppose  the  debt  has  been 
running  twenty  years,  and  the  premium  is 
at  five  per  cent. ;  the  creditor  may  pay  a 
sum,  equal  to  the  whole  debt,  in  pre- 
miums, and  yet  never  receive  a  dollar  of  it 
from  either  of  the  other  parties.  Not  from 
the  underwriters,  for  the  contingency  has 
not  happened,  and  there  has  been  no  loss 
by  fire  ;  nor  from  the  debtor,  because,  not 
having  authorized  the  insurance  at  his  ex- 
pense, he  is  not  liable  for  the  premium 
paid. 

"  What,  then,  is  there  inequitable,  on 
the  part  of  the  mortgagee,  towards  either 
party,  in  holding  both  siims  ?  They  are 
both  due  upon  valid  contracts  with  bim, 
made  upon  adequate  considerations  paid 
by  himself.  There  is  nothing  inequitable 
to  the  debtor,  for  he  pays  no  more  than  he 
originally  secured  in  money  loaned ;  nor 
to  the  underwriter,  for  he  has  only  paid 
upon  a  risk  voluntarily  taken,  for  which 
he  was  paid  by  the  mortgagee  a  full  and 
satisfactory  equivalent." 

See,  also,  Suffolk  Fire  Ins.  Co.  v.  Boy- 
den,  9  Allen  (Mass.),  123  ;  Foster  r.  Equi- 
table Mut.  F.  Ins.  Co.  2  Gray  (Mass.), 
216  ;  Concord  Union  INIut.  Fire  Ins.  Co.  v. 
Woodbury,  45  Me.  447;  Cushing  v. 
Thompson,  34  Me.  496  ;  Clark  v.  Wilson, 
103   Mass.  221. 

2  King  V.  State  Mutual  Fire  Ins.  Co. 
supra;  White  r.  Brown,  2  Cush.  (Mass.) 


A   MORTGAGE   NOT   AN   ALIENATION.        [§§  422,  423. 

mortgage  discliarged  before  the  loss  occurred,  the  mortgagee's  in- 
surable interest  having  terminated,  he  has  no  claim  to  recover. 

4.  A  Mortgage  is  not  an  Alienation. 

422.  With  reference  to  the  usual  provision  in  the  policy  of 
insurance,  that  it  shall  become  void  upon  an  alienation  of  the 
property  insured,  or  upon  any  transfer  or  change  of  title,  it  is 
held  that  a  mortgage  is  not  an  alienation  or  change  of  title  until 
foreclosure  is  complete.^ 

423.  If,  however,  the  mortgage  is  by  a  deed  absolute  in 
form,  this  operates  as  a  transfer  or  change  of  title,  and  puts  an 
end  to  an  insurance  conditioned  to  be  void  in  that  event.^ 

Some  courts,  however,  hold  that  a  conveyance  which  equity 
will  treat  as  a  mortgage  does  not  terminate  the  interest  of  the 
assured,  or  make  void  the  policy  under  the  alienation  clause.^  If 
there  be  a  written  defeasance  which  is  seasonablj^  recorded,  the 
two  instruments  constitute  a  mortgage  as  effectually  as  if  the  de- 
feasance were  contained  in  the  deed,  and  there  can  be  no  pre- 
tence that  there  is  an  absolute  conveyance.'*     But  if  the  defea- 

412  ;  Gushing  v.  Thompson,  34  Me.  496  ;  change  of  title  without  a  sale.     Should  A. 

Concord  Union  Mut.  F.  Ins.  Co.  v.  Wood-  convey  a  piece  of  property  to  B.  to  hold  in 

bury,  45  Me.  447  ;  Bean  v.  Atlantic  &  St.  secret   trust   for   him,    there  would   be   a 

Lawrence  E.  Co.  58  Me.  82.  transfer  or  change  of  title  from  A.  to  B., 

1  Jackson  v.  Mass.  Mut.  Fire  Ins.  Co.  but  there  would  be  no  sale  of  the  property 
23  Pick.  (Mass.)  418;  Kice  v.  Tower,  1  or  an  actual  parting  with  it  to  B.  for  a 
Gray  (Mass.),  426;  Pollard  v.  Somerset  valuable  consideration,  although  the  con- 
Mut.  Fire  Ins.  Co.  42  Me.  221  ;  Smith  v.  veyance  on  its  face  would  import  a  sale 
Monmouth  Mut.  Fire  Ins.  Co.  50  Me.  96  ;  from  A.  to  B.  And  if  the  trust,  instead 
Shepherd  v.  Union  Mut.  Fire  Ins.  Co.  38  of  being  secret,  appeared  on  the  face  of 
N.  H.  232  ;  Button  v.  N.  Eng.  Mut.  Fire  the  conveyance,  there  would  still  be  a 
Ins.  Co.  9  Fost.  (N.  H.)  153;  Rollins  v.  change  of  title.  The  title  would  no  longer 
Columbian  Mut.  Fire  Ins  Co.  5  lb.  200;  be  in  A.  but  in  B.,  his  grantee.  We  think 
Folsom  V.  Belknap  Co.  Mut.  Fire  Ins  Co.  such  a  conveyance  would  clearly  come 
10  lb.  231  ;  Conover  v.  Mut.  Ins.  Co.  of  within  the  condition  of  the  policy  and  put 
Albany,  3  Denio,  254;  S.  C.  1  Comst.  (N.  an  end  to  the  insurance." 

y.)  290 ;  Howard  F.   Ins.  Co.  v.  Bruner,  3  Holbrook    v.   American    Ins.   Co.    1 

23  Pa.   St.  50  ;  contra,  see  McCulloch  v.  Curtis  C.  C.  193  ;    Hodges  v.  Tennessee 

Indiana  Mut.  Fire  Ins.  Co.SBlackf.  (Ind.)  Marine  &  Fire  Ins.  Co.  8  N.  Y.  416  ;  and 

50;  Indiana  Mut.  Fire  Ins.  Co.  v.  Coquil-  see  Tittemore  v.  Vt.  Mut.  Fire  Ins.  Co.  20 

lard,  2  Ind.  645.  Vt.  546. 

2  Western  Mass.  Ins.  Co.  v.  Riker,  10  •*  Smith  v.  Monmouth  Mut.  F.  Ins.  Co. 
Mich.  279.     "  There  may  be  a  transfer  or  50  Me.  96. 

311 


§§  424,  425.]  INSURANCE. 

sance  be  not  recorded,  the  deed  is  an  alienation  which  will  avoid 
the  policy.-^ 

424.  Entry  to  foreclose.  —  Where  a  policy  provided  that  "  the 
entry  of  a  foreclosure  of  a  mortgage  "  should  be  deemed  an  alien- 
ation of  the  property,  and  the  company  should  not  be  holden  for 
any  loss  occurring  afterwards,  it  was  held  that  this  did  not  mean 
an  actual  and  complete  foreclosure,  but  had  reference  to  an  entry 
by  the  mortgagee  upon  a  breach  of  condition  for  the  j^urpose  of 
foreclosure.  Under  the  system  of  foreclosure  in  use  in  Massachu- 
setts, such  entry  duly  recorded,  and  followed  by  possession  for 
three  years,  accomplishes  a  foreclosure.^ 

The  court  say  :  "  The  first  step  towards  foreclosure  is  the  man- 
ifestation of  the  intent  to  foreclose,  which  is  to  be  indicated  in 
such  manner  as  the  law  points  out,  accompanied  with  a  formal 
registration  in  the  public  records.  It  is  very  manifest,  as  we  think, 
that  the  words  '  the  entry  of  a  foreclosure,'  as  used  in  the  policy, 
are  not  to  be  interpreted  as  meaning  exactly  the  same  thing  as 
a  consummated  and  finished  foreclosure.  The  policy  provides  not 
merely  for  the  transfer  but  the  change  of  title,  and  the  insurer 
may  very  naturally  have  considered  an  entry  for  foreclosure  as  a 
material  change  in  the  title  of  the  assured  and  in  his  relation  to 
the  property.  The  parties  in  their  contract  have  taken  pains  to 
avoid  saying  simply  that  '  the  foreclosure  of  a  mortgage '  shall 
be  deemed  an  alienation.  There  would  be  no  occasion- for  them 
to  say  that,  inasmuch  as  the  law  would  plainly  have  said  it  for 
them." 

425.  But  when  the  title  becomes  absolute  in  the  mortgagee 
by  a  strict  foreclosure,  or  by  a  foreclosure  effected  by  entry  and 
possession,  or  when  the  title  passes  to  another  by  a  sale  under  a 
power  contained  in  the  mortgage,  or  by  a  sale  under  a  decree  of 
court  in  a  foreclosure  suit,  the  transfer  is  then  complete,  and  the 
change  of  title  is  an  alienation  within  the  terms  of  the  policy  of 
insurance.^ 


1  Tomlinson  v.  Monmouth  Mat.  F.  Ins.  Co.    8   Cush.   (Mass.)   133  ;    McLaren    v. 
Co.  47  Me.  232.  Hartford  Fire  Ins.  Co.  5  N.  Y.  151;  Mt. 

2  Mclntire  ?;.  Norwich  Fire  Ins.  Co.  102  Vernon   Manuf.  Co.  v.  Summit  Co.  Mut. 
Mass.  230.  Fire  Ins.  Co.  10  Ohio  St.  347. 

8  Macombcr  v.  Cambridge  Mut.  F.  Ins. 

312 


A   MORTGAGE   NOT    AN   ALIENATION.         [§§  426,  427. 

In  case,  however,  the  foreclosure  is  effected  by  the  mortgagor 
for  the  benefit  of  the  mortgagee  wlio  signs  the  premium  note  and 
pays  tlie  assessments,  foreclosure  is  not  an  alienation,  if  the  mort- 
gagee thereby  obtains  absolute  title  to  the  property,  as  he  is 
already  the  person  liable  under  the  contract  of  insurance.^ 

426.  Alteration  of  ownership.  —  But  a  mortgage  is  a  viola- 
tion of  a  condition  against  an  "  alteration  of  ownership,"  ^  as 
also  of  a  condition  against  a  sale  or  alienation  "  in  whole  or  in 
part."  3 

A  conveyance  and  mortgage  back  to  secure  the  purchase  money 
is  such  an  alienation  as  will  avoid  a  policy  upon  the  property,  al- 
though it  is  provided  that  the  mortgagee  shall  retain  possession 
until  the  purchase  money  is  paid.*  But  a  conveyance  by  the  in- 
sured, with  a  simultaneous  reconveyance  in  trust  for  the  first 
grantor,  is  held  not  to  be  such  an  alienation  or  transfer.^  And  so 
if  the  sale  and  reconveyance  constitute  merely  a  conditional  sale, 
they  are  regarded  as  piirts  of  one  entire  contract,  and  are  held 
not  to  be  such  an  alienation  as  will  avoid  the  policy.^ 

427.  After  assignment  of  policy  with  consent.  —  If  the 
mortgagor  has  already  assigned  the  policy  with  the  consent  of  the 
insurers  to  the  mortgagee,  his  subsequent  transfer  of  the  equity 
of  redemption  is  no  breach  of  the  stipulation  in  the  policy  against 
alienation,  so  far  as  the  assignee  is  concerned." 

This  view  has  been  criticised  in  some  courts  as  contrary  to  the 
principle  of  public  policy,  that  no  man  shall  be  allowed  to  bar- 
gain for  an  advantage  to  arise  from  the  destruction  of  property.^ 

1  Bragg  V.  N.  E.  Mut.  Fire  Ins.  Co.  5  ^  Tittemore  v.  Vt.  Mut.  Tire  Ins.  Co. 
Fost.  (N.  H.)  289.  supra. 

2  Edmands  v.  Mut.  Safety  Fire  Ins.  Co.        '  Foster  v.  Equitable  Mut.  Fire  Ins.  Co. 

1  Allen  (Mass.),  311.  2  Gray  (Mass.),  216;  Fogg  v.  Middlesex 

3  Abbott  I'.  Hampden  Mut.  Fire  Ins.  Mut.  Fire  Ins.  Co.  10  Cush.  (Mass.)  337; 
Co.  30  Me.  414 ;  Bates  v.  Cora.  Ins.  Co.     Bragg  v.  N.  Eng.  Mut.  Fire    Ins.  Co.  5 

2  Cincinnati  Supr.  Ct.  (Ohio)  195.  Fost.  (N.  H.)  289;  Boynton  v.  Clinton  & 
*  Tittemore   v.  Vt.  Mut.  Fire  Ins.  Co.     Essex  Mut.  Ins.  Co.  16  Barb.  (N.  Y.)  254. 

20  Vt.  546.  *  Kernochan  v.  N.  Y.  Bowery  F.  Ins. 

5  Morrison  v.  Tenn.  Mar.  &  Fire  Ins.     Co.  17  N.  Y.  428. 
Co.  18  Mo.  262. 

313 


CHAPTER  XI. 

FIXTURES. 

1.  Rules  for  determining  what  Fixtures  a  Mortgage  covers. 

428.  In  general.  —  A  mortgage  of  real  property,  as  a  general 
rule,  carries  as  part  of  the  security  all  fixtures  belonging  to  the 
realty,  without  any  special  mention  of  them  being  made  in  the 
conveyance.  In  determining  what  chattels  when  annexed  to  the 
land  become  fixtures,  and  therefore  bound  by  a  mortgage,  very 
much  the  same  rules  apply  as  between  a  grantor  and  his  grantee 
in  case  of  an  absolute  conveyance  ;  ^  but  although  in  the  case  of 
a  deed  the  construction  is  generally  more  favorable  to  holding 
that  things  attached  to  the  land  are  part  and  parcel  of  the  realty, 
and  no  longer  personalty,  yet  in  the  construction  of  a  mortgage 
even  greater  favor  in  the  same  way  seems  to  be  shown  the  mort- 
gagee. The  reason  seems  not  to  be  far  away.  When  the  ques- 
tion arises  under  a  mortgage,  the  mortgagor  always  has  the  right 
to  redeem,  and  in  this  way  to  gain  the  benefit  of  any  addition 
made  to  the  realty  ;  and  any  one  claiming  under  him  has  only  his 
rights,  and  acquires  these  with  full  knowledge  of  the  incumbrance 
and  of  the  condition  of  the  property. 

All  buildings  and  other  fixtures  annexed  to  the  freehold  be- 
come part  of  it,  and  enure  to  the  benefit  of  those  who  are  entitled 
to  it ;  both  to  the  mortgagee  as  an  increased  security  for  his  debt, 
and  to  the  mortgagor  to  the  same  extent  as  enhancing  the  value 
of  his  equity  of  redemption.  The  latter  can  obtain  the  full  benefit 
of  all  improvements  he  has  made  by  paying  his  debt  and  regain- 
ing his  estate  by  redemption.  This  rule  as  well  as  the  exceptions 
to  it  is  applicable  to  deeds  of  trust  equally  with  mortgages.^ 

1  Lon<j;staff  v.  Meagoe,  2  Adol.  &  El.  Smith  (N.  Y.),273;  Robinson  r.  Preswick, 
167  ;  Main    v.  Schwarzwealder,  4  E.   D.     3  Edw.  (N.  Y.)  Ch.  246. 

2  Grffime  v.  CuUen,  23  Gratt,  266. 

314 


RULES   FOR   DETERMINING   FIXTURES.  [§  429. 

429.  The  intention  with  which  fixtures  are  annexed  largely 
determines  the  right  to  them.  —  The  intention  with  which  an 
article  of  personal  property  is  attached  to  the  realty,  whether  for 
temporary  use  or  for  permanent  improvement,  has  within  certain 
limits  quite  as  much  to  do  with  the  determination  of  the  question 
whether  it  has  thereby  become  a  permanent  fixture,  as  has  the 
way  and  manner  in  which  it  is  attached.^  If  it  is  something 
necessary  for  the  proper  enjoyment  of  the  estate  it  may  be  pre- 
sumed that  it  was  annexed  for  its  permanent  improvement,  and 
therefore  that  it  goes  to  the  benefit  of  the  mortgagee.  The  fixt- 
ures may  be  so  adapted  to  the  building  in  which  they  are  placed, 
and  to  the  purposes  for  which  the  building  is  to  be  used,  as  to 
show  clearly  that  they  were  designed  to  be  permanent.  Such  for 
instance  are  the  fixtures  in  a  manufactory  necessary  for  famish- 
ing the  motive  power,  or  for  the  proper  carrying  on  of  the  busi- 
ness.2  A  mortgage  of  a  machine-shop  includes  a  lathe  and  other 
fixtures  necessary  for  the  prosecution  of  the  business  of  the  shop.^ 
A  mortgage  of  a  building  erected  for  a  steam  saw-mill,  and  which 
would  be  of  little  use  for  any  other  purpose,  embraces  also  the 
boilers,  engines,  saws,  gearing  and  machinery  necessary  for  the 
working  of  the  mill  and  without  which  it  would  be  incomplete.* 
Boilers,  engines,  shafting,  and  steam-pipes  for  heating  a  large  build- 
ing, are  covered  by  a  mortgage  of  the  realty.^  In  a  case  before 
the  Irish  Chancery  Court  the  Lord  Chancellor  said :  "  I  find  that 
all  the  cases  come  round  to  the  same  question,  namely,  what  are 
fixtures  ?  Now,  it  appears  to  me  that  this  does  not  at  all  depend 
upon  the  power  of  removal ;  the  owner  in  fee  has  the  right  to 
remove  all  fixtures  ;  the  tenant  has  a  right  to  remove  fixtures 
erected  for  trade  purposes  ;  but  until  they  are  severed  they  are 
still  fixtures,  and  as  between  mortgagor  and  mortgagee  they  are 
not  removable,  though  the  mortgagor  remain  in  possession.  I 
therefore  think  that  the  possibility  of  removal  is  not  so  much  the 
test  as  the  nature  of  the  article." 

1  Quinby  V.  Manhattan  Cloth  &  Paper    Crane  v.  Brigham,  3  Stockt.  (N.  J.)  29 ; 
Co.  24  N.  J.  Eq.  260 ;  Hill  v.  Wentworth     Keve  v.  Paxton,  26  N.  J.  Eq.  107. 

28   Vt.  429,   per  Bennett,  J.;  Bishop  v.        ^  Hoskin  i'.  AVoodward,  45  Pa.  St.  42. 
Bishop,  11   N.   Y.  12.3,  as  to   hop-poles;         *  Brennan    v.    Whitaker,    15   Ohio  St. 

Voorhees  v.  McGinnis,  54  N.  Y.  324  ;  Pot-  446 ;  Quinby  v.  Manhattan  Cloth  &  Paper 

ter  V.  Cromwell,  40  N.  Y.  287.  Co.  24  N.  J.  Eq.  260. 

2  Millikin  v.  Armstrong,  17  Ind.  456  J         *  Ex  parte  Montgomery,  &c.  4  Irish  Ch. 

N.  S.  520. 

315 


§§  430,  431.]  FIXTURES. 

The  principles  by  which  to  determine  whether  a  personal  arti- 
cle after  being  attached  to  the  realty  still  remains  a  chattel  are 
two  :  first,  the  mode  and  degree  of  the  annexation  ;  and  second, 
the  purpose  of  it ;  ^  the  first  cannot  of  course  be  defined  with  any 
exactness.  The  modes  of  annexation  may  be  almost  as  numerous 
as  the  instances  that  occur.  The  degrees  of  physical  force  with 
which  the  chattels  are  annexed  may  be  as  many  as  the  modes 
of  annexation.  The  degree  may  be  very  slight  and  yet  be  suffi- 
cient to  make  the  article  a  fixture  and  part  of  the  realty.  As  the 
result  of  the  numerous  cases,  it  is  safe  to  say  that  this  is  the  less 
important  part  of  the  criterion.  If  the  intent  is  manifest  that 
the  chattel  is  attached  to  the  estate  for  its  permanent  improve- 
ment, the  mode  and  degree  in  which  it  is  attached  are  of  lit- 
tle importance.  In  a  case  before  the  English  Court  of  Queen's 
Bench,2  in  regard  to  a  hydraulic  press  placed  in  a  factory  but  not 
essential  to  its  work,  Mr.  Justice  Mellor  said:  "  If  we  could  see, 
as  in  the  gas-works  case,^  an  intention  that  tlie  chattel  should 
remain  fixed  to  the  factory  so  long  as  the  factory  remained  a 
factory,  then  we  might  think  the  press  to  be  sufficiently  fixed  to 
become  a  part  of  the  freehold  ;  but  we  see  no  such  intention." 

430.  The  enumeration  of  some  fixtures  excludes  others.  — 
The  fact  that  a  mortgage  enumerates  some  fixtures,  but  does  not 
enumerate  others  which  afterwards  become  the  subject  of  dispute, 
affords  reason  to  suppose  that  these  were  intentionally  omitted  in 
the  mortgage  deed,  and  did  not  pass  by  it ;  *  upon  the  principle 
"  Expressio  unius  est  exclusio  alterius.'''' 

431.  The  fact  that  a  chattel  has  been  mortgaged  before  it 
was  attached  to  the  realty  seems  to  have  been  of  weight  in  some 
cases,  in  leading  to  the  determination  that  such  mortgage  carries 
the  fixture  as  against  a  mortgage  of  the  realty  already  existing ;  ^ 
and  an  agreement  made  by  the  mortgagor  with  a  third  person  to 
whom  the  chattels  belonged,  that  they  should  remain  his  after 
they  are  affixed  to  the  realty  until  paid  for,  or  that  they  should  be 

1  Ilellawell  v.  Eastwood,  6  Exch.  295.  ^  Eaves  v.  Estes,  10  Kans.  314 ;  Tibbetts 

2  Parsons  v.  Hind,  14  W.  R.  860.  v.  Moore,   23  Cal.  208  ;  and  see   Ford  v. 
8  Reg.  V.  Lee,  L.  R.  1  Q.  B.  241  ;  14  W.     Cobb,  20  N.  Y.  344  ;  Sheldon  v.  Edwards, 

R-311.  35  N.  Y.  279;  United  States  v.  New  Or- 

*  Trappes  v.  Ilarter,  2  C.  &  M.  153, 177.     leans  Railroad,  12  Wall.  362. 

316 


EULES    FOR    DETERMINING  FIXTURES.  [§  432. 

subject  until  paid  for  to  his  right  to  remove  them,  has  been  held 
to  have  the  same  effect.  In  a  case  before  the  Court  of  Appeals 
of  New  York,i  it  was  held  that  such  an  agreement  preserved  the 
character  of  the  chattels  as  personal  property  when  they  would 
otherwise  have  become  fixtures  so  as  to  pass  by  a  mortgage  of 
the  realty.  But  it  was  said  that  while  there  was  no  doubt  that 
the  owner  of  the  land  intended  that  the  articles,  which  were  an 
engine  and  boilers,  should  ultimately  become  a  part  of  the  realty, 
and  be  permanently  afl&xed  to  it,  yet  this  intentioa  was  subor- 
dinate to  the  prior  intention  expressed  by  the  agreement  that  the 
act  of  annexing  them  should  not  change  their  character  as  chat- 
tels until  the  price  should  be  fully  paid. 

If  the  real  estate  is  subject  to  a  mortgage  when  chattels  are 
annexed  to  it,  which  are  not  at  the  time  subject  to  any  personal 
mortgage,  or  to  any  equitable  agreement  for  their  subsequent  re- 
moval, the  chattels,  if  of  the  nature  to  become  fixtures,  become  so 
immediately  upon  being  attached  to  the  land  ;  and  any  chattel 
mortgage,  or  agreement  that  the  articles  should  be  considered 
personal  property,  will  have  no  effect.^  The  chattels  once  hav- 
ing been  annexed  to  the  realty  and  bound  by  a  mortgage  of  the 
realty  cannot  be  dissevered,  except  with  the  consent  of  the  mort- 
gagee. 

In  a  case  where  machinery  for  a  saw-mill  was  sold  to  the  owner 
under  a  condition  that  it  should  remain  the  property  of  the  vendor 
until  paid  for,  and  after  a  part  of  it  had  been  set  up  in  the  mill  a 
mortgage  was  made  of  the  mill  premises,  the  mortgagee  having 
no  notice  of  this  agreement,  it  was  held  that  the  part  of  the  ma- 
chinery which  had  been  put  up  in  the  mill  passed  by  the  mort- 
gage ;  but  that  as  to  such  of  the  machinery  as  was  then  lying  in 
the  mill  yard  the  mortgagee  gained  no  title  as  against  the  un- 
paid vendor.^ 

432.  Hired  fixtures.  —  It  has  been  held,  however,  that  boilers 
put  into  a  steam  mill,  after  the  execution  of  a  mortgage  upon  the 
mill  under  an  agreement  with  the  mortgagor  that  he  should  have 

1  Tifft  V.  Horton,  53  N.  Y.  377.     Tliis  had  been  attached  to  the  realty  before  the 

case  is  not  entirely  in  accord  with  the  case  execution  of  the  chattel  mortjrage. 

of  Voorhees  v.  McGinnis,  48  N.  Y.  276,  -  Vanderpoel  y.  Van  Allen,  10  Barb.  (N. 

which  related   to   an  engine  and   boilers,  Y.)  157;  United    States  v.  New   Orleans 

which  were  covered  by  a  chattel  mortgage.  Railroad,  12  Wall.  362. 

It  seems  however  that  part  of  the  articles  ^  Davenport  r.  Shants,  43  Vt.  546. 

317 


§  433.] 


FIXTURES. 


the  use  of  them  at  a  certain  rental,  and  that  they  should  remain 
the  property  of  the  person  who  put  them  in,  and  who  should  have 
the  privilege  of  removing  them  at  his  pleasure,  were  not  subject  to 
the  mortgage.^ 

In  like  manner  machinery  put  into  a  mill  subject  to  a  mort- 
gage, merely  to  exhibit  it  to  the  public  by  one  not  a  party  to  the 
mortgage,  is  not  covered  by  the  mortgage.^  Although  such  ma- 
chiner}^  be  afterwards  bought  by  one  of  the  mortgagors,  if  this  be 
not  done  witii  the  intent  to  use  it  in  connection  with  the  business 
carried  on  upon  the  premises,  it  does  not  then  come  within  the 
operation  of  the  mortgage.^ 

433.  Buildings  erected  on  the  mortgaged  premises  by  the 
mortgagor  are  annexed  to  the  freehold  and  cannot  be  removed  by 
him,  or  by  any  one  under  his  authority,  while  the  debt  remains 
unpaid.^  When,  however,  the  building  is  erected  merely  for  tem- 
porary use,  and  it  is  apparent  that  there  was  an  intention  that  it 
should  not  become  attached  to  the  land  even  so  slightly  as  by  the 
sinking  into  the  soil  of  the  blocks  upon  which  it  rested,  the  mort- 
gagee of  tlie  land  will  acquire  no  interest  in  it,  although  placed 
there  by  tlie  mortgagor.  If  erected  by  a  firm  of  which  the  mort- 
gagor is  a  member  for  purposes  of  trade,  it  is  all  the  more  clear 
that  it  was  not  intended  as  a  permanent  improvement,  or  to  be- 
come a  part  of  the  realty.^ 

The  owner  of  a  lot  of  land  having  by  parol  license  allowed  a 
third  person  to  erect  a  building  upon  it,  afterwards  made  a  mort- 
gage of  it  to  one  who  had  no  notice  of  such  license.^  It  was  held 
that  he  was  entitled  to  the  building,  and  having  entered  into  pos- 
session might  maintain  trespass  against  one  removing  it ;  and  it 
was  held,  too,  that  the  mere  fact  that  the  person  who  erected  the 
building  occupied  it  was  no  notice  of  his  claim  to  it. 

A  mortgage  of  a  house  passes  the  presses,  cupboards,  glazed 
doors,  movable  partitions,  grates,  ranges,  and  other  like  fixtures 
contained  in  it.'''     It  also  passes  the  windows  and  blinds,  though 

1  Hillv.  Sewald,  53  Pa.  St.  271.  40;  Sweetzer   v.  Jones,   35    Vt.  317,   per 

2  Stell  V.  Taschal,  41  Tex.  640.  Kellog,  J. ;  Frankland  v.  Moulton,  5  Wis.  1 . 
8  Stell  V.  Paschal,  sujora.  5  Kellj'  v.  Austin,  46  111.  156. 

*  Burnside  v.  Twitchell,  43  N.  H.  390  ;  6  Powers  v.  Dennison,  30  Vt.  752. 

Cole  V.  Stewart,    11  Cush.    (Mass.)    181  ;  ■?  Longstaff  v.  Meagoe,  2  Adol.  &    El. 

Winslow  I).  Merchants'    Ins.  Co.   4   Met.  167;  Col egrave  r.  Dias  Santos,  2  Barii.& 

(Mass  )  30G ;  Butler u.  Page,  7  Met.  (Mass.)  Cress.  76. 
318 


RULES   FOR   DETERMINING   FIXTURES.        [§§  434,  435. 

temporarily  sepai'tited  from  the  bouse ;  the  door  keys ;  ^  a  sun 
dial  erected  on  a  permanent  foundation  ;  ^  a  furnace  so  placed 
in  a  house  that  it  cannot  be  removed  without  disturbing  the  brick- 
woi'k  of  the  house,  and  causing  a  portion  of  the  ceiling  to  fall.^ 
Articles  of  furniture  are  not  fixtures,  though  attached  to  the  build- 
ing. On  this  principle  gas-fixtures  adjusted  to  the  gas-pipes  do 
not  pass  with  the  realty.^ 

A  mortgage  of  a  plantation  will  not  cover  the  wagons  and  tools 
used  upon  it,  or  the  stock  and  cattle,  unless  such  property  be  ex- 
pressly included  in  the  mortgage.^ 

434.  Trees  and  shrubs  planted  in  a  nursery  garden,  for  the 
temporary  purpose  of  cultivation  and  growth  until  they  are  fit  for 
market,  and  then  to  be  taken  up  and  sold,  pass  by  a  mortgage  of 
the  land,  so  that  neither  the  mortgagor  nor  his  assignee  or  cred- 
itors can  remove  them  as  personal  property.^  One  claiming  that 
trees  and  shrubs,  whether  growing  naturally  or  planted  and  culti- 
vated for  any  purpose,  are  not  part  of  the  realty,  must  show  spe- 
cial circumstances  which  take  the  particular  case  out  of  the  gen- 
eral rule  ;  he  must  show  that  the  parties  intended  that  they  should 
be  regarded  as  personal  chattels.  The  mere  fact  that  the  trees 
and  shrubs  were  the  stock  in  trade  of  the  mortgagor  in  his  busi- 
ness as  a  nursery  gardener  is  insufficient  for  this  purpose.  They 
2ixe  primd  facie  parcel  of  the  land  itself,  and  would  pass  to  a  ven- 
dee upon  a  sale  of  the  land  unless  speciall}'-  excepted,  and  in  the 
same  way,  unless  excepted,  pass  to  a  mortgagee."  Although 
planted  by  the  mortgagor  after  the  execution  of  the  mortgage,  they 
become  a  part  of  the  realty  and  part  of  the  mortgage  security.^ 

435.  Fixtures  annexed  before  the  mortgage.  —  A  fixture 
annexed  to  the  land  at  the  time  of  the  execution  of  the  mortgage 
will  pass  by  the  mortgage  without  any  special  mention  of  the  fixt- 
ure, and  even  without  any  general  description  of  it,  or  evidence  of 
intention  to  include  it,  such  as  might  be  afforded  as  to  machinery 

1  Liford's  case,  11  Coke,  50.  see   Bank    of    Lansingburgh  v.   Crary,  1 

2  Snedeker  v  Warring,  12  N.  Y.  170.  Barb.  (N.  Y.)  542  ;    King  v.  Wilcomb,  7 
8  Main  v.  Scharzwaelder,  4  E.  D.  Smith     lb.  263. 

(N.  Y.),  273.  ''  Per  Hinman,  C.  J.,  in  Maples  v.  Mil- 

•*  Shaw  V.  Lenke,  1  Daly  (N.  Y.),  487.  Ion,  supra. 

6  Vason  V.  Ball,  56  Ga.  268.  ^  Price  v.  Brayton,  19  Iowa,  309. 
«  Maples  V.  Millon,  31  Conn.  598.  And 

319 


§  435.]  FIXTURES. 

or  other  articles  employed  for  manufacturing  purposes  by  a  special 
mention  of  a  mill  aside  from  the  description  of  the  land.  This 
was  the  decision  in  an  early  case  in  Massachusetts,^  in  which  it 
was  held  that  a  kettle  in  a  fulling  mill  set  in  brick-work,  and  used 
for  dying  cloth,  passed  by  a  mortgage  of  the  land  upon  which  the 
mill  stood.  The  grounds  of  the  decision  were  that  this  fixture 
could  not  be  removed  without  actual  injury  to  the  mill;  that  it 
was  essential  to  the  use  of  the  mill ;  and  that  being  attached  to  it 
at  the  time  of  making  the  mortgage,  it  passed  by  it  as  part  of  the 
security. 

As  a  general  rule  a  mortgage  of  land  passes  the  fixtures  already 
upon  it  without  any  special  mention  being  made  of  them.  They 
pass  with  the  estate  and  as  a  part  of  it.  In  a  mortgage  deed  the 
premises  were  described  as  certain  land  "  with  the  paper  mill,  &c., 
thereon,  and  water  privilege,  appurtenances,  &c.,  together  with 
all  its  privileges  and  appurtenances."  The  machinery  in  contro- 
versy was  fastened  to  the  floor  of  the  mill  hy  means  of  iron  bolts 
with  nuts  upon  the  ends  of  them.  The  machinery,  however, 
could  be  removed  without  injury  to  the  building,  and  might  be 
used  in  other  paper  mills.  The  machinery  was  subsequently 
attached  by  a  creditor  of  the  mortgagor,  but  it  was  held  that 
it  passed  by  the  mortgage  of  the  land  and  mill  as  a  part  of  the 
realty.2 

A  mortgage  of  a  mill  passes  the  stones,  tackling,  and  imple- 
ments necessary  for  working  it.^  A  mortgage  of  a  sugar-house 
carries  with  it  an  engine  and  machinery  attached  to  it.^  Machin- 
ery set  in  bricks,  and  run  by  steam-power,  for  the  purpose  of 
manufacturing  cotton-seed  oil,  constitutes  a  part  of  the  realty  and 
part  of  the  security  under  a  mortgage  of  the  realty,^  A  cotton- 
gin  and  press  are  fixtures  and  a  part  of  the  freehold,  and  are  car- 

1  Union  Bank  v.  Emerson,  15  Mass.  ing  erected  for  a  similar  purpose,  was  a 
159.  In  Hunt  «7.  Mullan])hy,  1  Mo.  508,  reason  for  considering  them  per.-^onal  prop- 
a  kettle  annexed  in  a  like  manner  to  the  erty  and  not  covered  by  a  mortgage  of  the 
freehold  was  lield  not  to  be  covered  by  the  realty.  A  like  view  was  taken  in  Fiillam 
mortgage,  on  the  ground  that  it  was  not  v.  Stearns,  30  Vt.  443,  in  respect  to  a  plan- 
permanently  annexed.  ing  machine,  a   circular  saw  and  frame, 

2  Lathrop  v.  Blake,  3  Fost.  (N.  H.)  -4  6  ;  and  a  boring  machine. 

Burnside  v.  Twitchell,  43  N.  H.  390.     In  ^  Place  v.  Fagg,  4  Man.  &  R.  277. 

Gale  V.  Ward,  14  Mass.  352,  356,  the  fact  *  Citizens'  Bank  v:  Knapp,  22  La.  An. 

that  certain  carding  machines  could    be  117. 

removed  from  the  mill  without  injury  to  ^  Theurer  v.  Nautre,  23  La.  An.  749. 
it,  and  might  be  used  in  any  other  build- 

320 


RULES   FOR   DETERMINING   FIXTURES.  [§  436. 

ried  by  a  mortgage  of  it,  whether  erected  before  or   after  the 
mortgage.^ 

Of  course,  whenever  it  appears  from  the  instrument  itself  that 
the  parties  did  not  intend  that  the  machinery  in  the  mill  sliould 
be  covered  by  the  mortgage,  it  will  not  constitute  a  part  of  the 
mortgagee's  security .^ 

436.  Fixtures  annexed  after  the  mortgage.  —  Fixtures  at- 
tached to  the  realty  after  the  execution  of  a  mortgage  of  it  be- 
come a  part  of  the  mortgage  security,  if  they  are  attached  for  the 
permanent  improvement  of  the  estate  and  not  for  a  temporary 
purpose ;  ^  or  if  they  are  such  as  are  regarded  as  permanent  in 
their  nature ;  or  if  they  are  so  fastened  or  attached  to  the  realty 
that  the  removal  of  them  would  be  an  injury  to  it.  The  question 
whether  fixtures  annexed  to  the  realty  after  a  mortgage  of  it  has 
already  been  executed  become  a  part  of  it,  and  thus  become  also 
subject  to  the  mortgage,  is  a  different  one  in  some  respects  from 
that  which  arises  when  the  same  fixtures  are  already  attached  to 
the  realty  when  the  mortgage  is  made.  As  to  those  articles  which 
in  their  nature  are  such  as  to  render  it  doubtful  whether  they 
should  be  properly  classed  as  fixtures  or  not,  the  tendency  of  the 
decisions  seems  to  be  to  require  stronger  evidence  of  intention 
that  things  annexed  to  the  realty  after  the  making  of  the  mort- 
gage are  actually  fixtures,  and  therefore  form  with  the  land  one 
security,  than  is  required  when  they  are  affixed  before  the  mak- 
ing of  the  mortgage.  The  reason  of  this  apparently  is,  that  when 
the  personal  articles  are  already  attached  to  the  realty  when 
the  mortgage  is  taken,  it  is  more  likely  that  they  entered  into 
the  consideration  of  the  parties  in  estimating  the  value  of  the 
security,  than  it  is  when  they  are  not  attached  to  the  realty  and 
may  never  be.     It  is  true  that  there  may  be  in  the  taking  of  a 

1  Bond  V.  Coke,  71  N.  C.  97  ;  Latham  Chit.  703 ;  Hubbard  v.  Bagsliaw,  4  Sim. 
V.  Blakely,  70  N.  C.  368.  326  ;  Ex  parte  Reyiial,  2  Mon.,  Dea.  &  De 

2  Waterfall  v.  Penistone,  6  Ell.  &  Bl.     G.  443. 

876 ;  and  see  Begbie  v.  Fenwick,  L.  R.  8  In   a  few   cases  considerable  stress  has 

Ch.  App.  1075;  19  W.  R.  402  ;  Brown  on  been  placed  iijmn  the  fact  that  the  personal 

Fi.x.  3d  ed.  pp.  148,  149.  chattels   had   already  been   mortgaged  as 

8  Winslow  V.  Merchants'  Ins.  Co.  4  Met.  personal  before  they  were  attached  to  the 

(Mass.)  306  ;  Gardner  v.  Finley,  19  Barb,  realty.   Eaves  v.  Estes,  10  Kans.  314;  Tib- 

(N.  Y.)  317 ;  Roberts  v.  Dauphin  Deposit  betts  v.  Moore,  23  Cal.  208;  Davenport  v. 

Bank,  19  Pa.  St.  71  ;  Bond  v.  Coke,  71  Shants,  43  Vt.  546. 
N.   C.    97  ;   Ex  parte  Belcher,  4  Dea.  & 

VOL.  I.                                      21  321 


§§  437,  438.]  FIXTURES. 

mortgage  before  the  fixtures  are  annexed  an  expectation  of  an  in- 
creased value  to  arise  from  their  being  subsequently  attached  to 
the  realty,  as  when  a  building  has  been  erected  for  a  certain  pur- 
pose, and  it  is  contemplated  that  the  machinery  or  other  articles 
adapted  to  be  used  in  it  will  be  placed  in  it ;  but  it  is  evident  that 
less  reliance  would  be  placed  upon  this  expectation  than  upon  the 
actual  fact  of  the  existence  of  the  things  upon  the  mortgaged 
estate.  It  does  not  follow,  however,  from  the  fact  that  the  fixt- 
ures constituted  no  part  of  the  mortgage  security  when  it  was 
taken,  that  they  may  therefore  be  removed  without  any  wrong  to 
the  mortgagee.  He  is  entitled  to  the  benefit  of  any  improvement 
of  the  property  from  whatever  cause  it  may  arise,  just  as  he  may 
suffer  from  a  depreciation  of  it  arising  from  accident  or  neglect, 
or  from  fluctuations  in  value  due  to  general  causes.^ 

437.  An  equitable  mortgagee  has  the  same  right  to  hold  fixt- 
ures as  part  of  his  security  that  a  legal  mortgagee  has.^ 

A  woollen  manufacturer  mortgaged,  by  a  deposit  of  the  title 
deeds,  a  piece  of  land,  with  a  building  then  upon  it,  and  then 
built  a  mill  upon  the  land  and  fitted  it  with  a  steam-engine  and 
machinery  necessary  for  his  trade.  Subsequently  he  assigned  to 
another  all  the  machinery  and  fixtures  in  the  mill,  and  after  this 
executed  to  the  equitable  mortgagee  a  legal  mortgage  of  the  estate. 
The  Court  of  Queen's  Bench  held  that  all  the  machines  which 
were  fixed  in  a  quasi  permanent  manner  to  the  floor,  roof, .  or 
side-walls,  passed  to  the  equitable  mortgagee,  but  that  those  which 
were  merely  removable  articles  passed  to  the  assignee  under  the 
the  bill  of  sale.^ 

438.  The  law  may  be  superseded  by  agreement.  —  If  the 
mortgagee  assent  to  an  arrangement  between  the  mortgagor  and 
a  mechanic,  whereby  the  latter  builds  and  sets  up  a  machine  upon 
the  mortgaged  premises,  under  a  contract  that  the  machine  shall 
remain  his  property  until  paid  for,  or  if  the  mortgagee,  being  in 
possession,  treats  it  as  personal  property,  and  consents  to  its  re- 
moval, a  subsequent  assignee  of  the  mortgage  cannot  insist  that 

1  See  Roberts  v.  Dauphin  Deposit  Bank,  ^  Longbottom  v.  Berry,  L.  R.  5  Q.  B. 
.19  Pa.  St.  71.  123 ;  39  L.  J.  (N.  S.)  Q.  B.  87 ;  see,  also, 

2  Williams  v.  Evans,  23  Beav.  239  ;  Ex  Tebb  v.  Hodge,  39  L.  J.  (N.  S.)  C.  P.  56. 
parte  Astbury,  L.  R.  4  Ch.  App.  630. 

322 


RULES   FOR   DETERMINING    FIXTURES.  [§  439. 

under  it  he  became  the  owner  of  the  machine,  as  property  an- 
nexed to  the  realty  by  tlie  mortgagor.  Such  an  agreement  super- 
sedes the  general  law  as  to  fixtures  between  the  mortgagor  and 
mortgagee.^  And  such  was  the  case  also,  where  a  person  set  up 
a  steam-engine  and  boiler  upon  land  owned  by  another,  under  an 
agreement  that  he  might  remove  them  at  any  time,  and  after- 
wards took  a  mortgage  of  the  land  from  the  owner  of  it.  It  was 
held  that  they  never  became  the  property  of  the  mortgagor,  or 
fixtures  to  the  land,  and  therefore  were  not  included  in  the  mort- 
gage.2 

439.  Fixtures  annexed  by  a  tenant  of  the  mortgagor.  — 
If  fixtures  be  added  to  the  property  by  a  tenant  at  will  of  the 
mortgagor,  after  the  mortgage,  the  right  to  remove  them  is  deter- 
mined by  the  rule  which  prevails  as  between  mortgagor  and 
mortgagee,  and  not  that  which  prevails  as  between  landlord  and 
tenant ;  and  they  cannot  be  removed  without  the  consent  of  the 
mortgagee.^  It  does  not  avail  the  tenant  that  he  annexed  the 
fixtures  under  a  special  contract  with  the  mortgagor,*  or  that 
the  holder  of  the  morto^ao-e,  who  seeks  to  enforce  his  claim  to  the 
fixtures,  took  the  assignment  of  the  mortgage  with  notice  of  the 
tenant's  claim. ^  Where,  during  the  pendency  of  a  suit  to  fore- 
close a  mortgage,  a  stranger,  by  permission  of  the  mortgagor, 
erected  a  barn  on  the  mortgaged  premises,  it  was  held  that  as 
against  the  mortgagee  he  had  no  right  to  remove  it.^ 

When  permanent  structures  are  erected  by  a  lessee  upon  the 
mortgaged  estate,  the  mortgagee's  consent  is  necessary  for  their 
removal ;  but  if  they  are  erected  for  a  temporary  purpose,  and 
with  the  intention  of  removing  them,  the  lessee  may  remove 
them  at  any  time  during  his  term." 

If  a  lessee  mortgages  his  leasehold  estate,  the  same  rules  in  re- 
lation to  fixtures  upon  the  estate  apply  as  between  him  and  his 
mortgagee  that  would  apply  if  he  owned  the  estate  in  fee.^ 

1  Bartholomew  v.  Hamilton,  105  Mass.         ^  Clary  v.  Owen,  supra. 

239 ;  Frederick  v.  Devol,  15  Ind.  357.  ^  Preston  v.  Briggs,  16  Vt.  124. 

2  Taft  V.  Stetson,  117  Mass.  471.  '^  Kelly  i'.  Austin,  46  111.  156. 

8  LyndeiJ.  Kowe,  12  Allen  (Mass.),  100;  »  Ex  parte  Bentley,2  M.,D.  &De  G.  591; 

Clary   v.   Owen,    15    Gray    (Mass.),  522;  Ex  parte  Wilson,  4  Dea  &  Chit.  143;  2 

Hunt  V.  Bay  State  Co.  97  Mass.  279  ;  Day  Mont.  &  Ayr.  61 ;  Shuart  v.Taylor,  7  How. 

V.  Perkins,  2  Sandf.  (N.  Y.)  Ch.  359.  (N.  Y.)  Pr.  251. 

*  Clary  v.  Owen,  supra. 

323 


§§  440,  441.]  FIXTURES. 

440.  Lessee's  surrender  of  the  term.  —  If  a  lessee  mortgages 
tenant's  fixtures,  and  afterwards  surrenders  his  lease,  the  mort- 
gagee has  a  right  to  enter  and  sever  them.  The  surrender  of  the 
term  does  not  operate  to  extinguish  the  right  or  interest  already 
granted,  but  is  svibject  to  that  interest,  for  the  support  of  which 
the  original  term  still  continues.  The  mortgagee's  right  to  sever 
the  fixtures  from  the  freehold  is  an  interest  of  a  peculiar  nature, 
in  many  respects  rather  partaking  of  the  character  of  a  chattel 
than  of  an  interest  in  real  estate.  "  But  we  think,"  said  Mr. 
Justice  Williams,  in  a  case  before  the  English  Court  of  Common 
Pleas,^  "  that  it  is  so  far  connected  with  the  land  that  it  may 
be  considered  a  right  or  interest  in  it,  which,  if  the  tenant  grants 
away,  he  shall  not  be  allowed  to  defeat  his  grant  by  a  subsequent 
voluntary  act  of  surrender." 

441.  The  rule  as  to  trade  fixtures  not  applicable.  —  It  is  a 
settled  rule  of  law  that  fixtures  annexed  to  the  freehold  by  a  ten- 
ant for  the  purposes  of  trade  or  manufacture  may  be  removed  by 
him  at  the  expiration  of  his  term,  whenever  the  removal  of  them 
is  not  contrary  to  any  prevailing  practice,  and  the  articles  can  be 
removed  without  causing  material  injury  to  the  freehold.^  The 
purpose  of  this  rule  is  to  encourage  the  putting  up  of  works  bene- 
ficial to  the  public  by  persons  whose  tenure  of  the  property  is  so 
short  or  so  uncertain  that  they  would  not  make  the  improvements 
or  put  in  the  machinery  necessary  for  the  profitable  pursuit  of 
their  business,  unless  they  had  the  right  of  removing  these  things 
at  the  termination  of  their  tenancy.  The  reason  of  this  rule  does 
not  apply  when  the  fixtures  are  annexed  by  one  who  has  instead 
of  the  limited  interest  of  a  tenant  an  unlimited  ownership  in  fee  ; 
or  an  ownership  which  is  qualified  only  by  the  condition  of  a  mort- 
gage upon  the  land  which  it  is  presumed  he  intends  to  fulfil,  and 
which  at  any  rate  he  would  be  estopped  to  say  he  did  not  intend 
to  meet,  and  thus  to  keep  the  ownership  of  the  land.  Even  after 
a  forfeiture  of  the  condition,  he  is  allowed  a  considerable  time 
within  which  to  redeem,  or  else  obtain  the  full  value  of  the  land 
and  of  all  the  personal  articles  he  has  affixed  to  it  by  a  sale  of  the 
whole  interest  upon  foreclosure.    In  a  recent  case  before  the  Court 

^  The  London  &  Westminster  Loan  and  ^  Tyler  on  Fixtures,  p.  267  ;    Holbrook 

Discount  Co.  v.  Drake,  6  Cora.  B.  N.  S.  v.  Chamberlin,  116  Mass.  155;  Guthrie  u. 

798.  Jones,  108  Mass.  191. 
324 


RULES   FOR   DETERMINING   FIXTURES.  [§  441. 

of  Excliequer,^  the  question  of  the  appUcation  of  this  rule  to  the 
removal  of  a  steam-engine  and  boiler  used  in  a  saw-mill  upon  the 
mortgaged  premises  before  the  execution  of  tlie  mortgage  was 
fully  discussed.  It  was  found  by  the  jury  that  these  things  were 
put  up  by  the  mortgagor  not  to  improve  the  inheritance,  but  for 
the  better  use  of  the  property,  and  that  they  could  be  removed 
without  any  appreciable  damage  to  the  freehold  ;  but  the  court 
held  that  these  findings  were  immaterial,  because  the  right  of  the 
mortgagee  attached  by  reason  of  the  annexation  to  the  land,  and 
therefore  that  the  intention  of  the  mortgagor  in  respect  of  them 
could  not  prevail  against  the  legal  effect  of  the  deed.  Kelly,  C. 
B.,  delivering  the  judgment  of  the  court,  said  :  "It  is  a  case  be- 
tween mortgagor  and  mortgagee,  and  no  authority  has  been  cited 
to  show  that  a  mortgagor  is  entitled  to  remove  such  trade  fixtures. 
There  have  been  several  cases  where  the  courts  have  decided  that, 
upon  the  true  construction  of  the  mortgage  deeds,  trade  fixtures 
were  removable  by  the  mortgagor,  but  not  one  to  show  that  such 
right  exists  without  a  special  provision.  A  mortgage  is  a  security 
or  pledge  for  a  debt,  and  it  is  not  unreasonable  if  a  fixture  be 
annexed  to  land  at  the  time  of  the  mortgage,  or  if  the  mortgagor 
in  possession  afterward  annexed  a  fixture  to  it,  that  the  fixture 
shall  be  deemed  an  additional  security  for  the  debt,  whether  it  be 
a  trade  fixture  or  a  fixture  of  any  other  kind.  It  has  already  been 
observed  that  no  authority  has  been  cited  to  show  that  trade  fixt- 
ures may  be  removed  b}^  the  mortgagor,  but  there  are  several  to 
the  contrary  ;  and  unless  we  are  prepared  to  overrule  them,  our 
judgment  must  be  adverse  to  the  plaintiff."  This  case  was  carried 
by  appeal  to  the  Exchequer  Chamber,^  where  the  judgment  of  the 
court  below  and  the  law  there  declared  were  affirmed.  Mr.  Jus- 
tice Willes,  speaking  of  the  reason  why  the  engine  and  boiler, 
though  they  might  have  been  removed  by  a  tenant  at  the  expira- 
tion of  his  term,  yet  could  not  be  removed  by  a  mortgagor,  said  : 
"  And  we  are  of  opinion,  that  the  "decisions  which  establish  a  ten- 
ant's right  to  remove  trade  fixtures  do  not  apply  as  between  mort- 
gagor and  mortgagee,  any  more  than  between  heir  at  law  and 
executor.     The  irrelevancy  of  these  decisions  to  cases  where  the 

1  Climie  v.  Wood,  L.  R.  3  Exch.  257.  try  v.  Butlin,  L.  R.  8  Q.  B.  290;  21  W. 
To  like  effect  see  Cullwick  r.  Swindell,  L.  R.  633  ;  Day  v.  Perkins,  2  Sandf.  (N.  Y.) 
R.  3  Eq.  Cas.  249,  per  Lord  Roinilly  ;  Ex  Ch.  359 ;  Maples  v.  Millon,  31  Conn.  598. 
parte  Cotton,  2  M.,  D.  &  De  G.  725  ;  Haw-        -  Climie  v.  Wood,  4  Exch.  R.  328. 

325 


§  442.]  FIXTURES. 

conflicting  parties  are  mortgagor  and  mortgagee  was  pointed  out 
in  Walmsley  v.  Milne}  and  we  concur  with  the  observations  made 
in  that  case  by  the  Court  of  Common  Pleas."  As  ilhistrating  this 
distinction  and  the  reason  of  it,  the  learned  judge  quotes  the  lan- 
guage of  Lord  Cottenham,  in  a  case  before  the  House  of  Lords,^ 
where  it  was  sought  to  extend  the  rule  in  regard  to  trade  fixtures 
to  a  case  arising  between  an  heir  at  law  and  executor :  "  The  prin- 
ciple upon  which  a  departure  has  been  made  from  the  old  rule  of 
law  in  favor  of  trade  appears  to  me  to  have  no  application  to  the 
present  case.  The  individual  Avho  erected  the  machinery  was  the 
owner  of  the  land,  and  of  the  personal  property  which  he  erected 
and  employed  in  carrying  on  the  works  :  he  might  have  done 
what  he  liked  with  it ;  he  might  have  disposed  of  the  land  ;  he 
might  have  disposed  of  the  machinery  ;  he  might  have  separated 
them  again.  It  was  therefore  not  at  all  necessary,  in  order  to  en- 
courage him  to  erect  those  new  works  which  are  supposed  to  be 
beneficial  to  the  public,  that  any  rule  of  that  kind  should  be  estab- 
lished, because  he  was  master  of  his  own  land.  It  was  quite  un- 
necessary, therefore,  to  seek  to  establish  any  such  rule  in  favor  of 
trade  as  applicable  here,  the  whole  being  entirely  under  the  con- 
trol of  the  person  who  erected  this  machinery."  To  like  effect 
Chief  Justice  Shaw,  in  a  case  before  the  Supreme  Court  of  Massa- 
chusetts,*^ said :  "  The  mortgagor,  to  most  purposes,  is  regarded 
as  the  owner  of  the  estate  ;  indeed  he  is  so  regarded  to  all  pur- 
j)oses,  except  so  far  as  it  is  necessary  to  recognize  the  mortgagee 
as  legal  owner,  for  the  purposes  of  his  security.  The  improve- 
ments, therefore,  which  the  mortgagor,  remaining  in  the  possession 
and  enjoyment  of  the  mortgaged  premises,  malces  upon  them,  in 
contemplation  of  law  he  makes  for  himself,  and  to  enhance  the 
general  value  of  the  estate,  and  not  for  its  temporary  improve- 
ment." 

442.  In  Vermont  the  rule  as  to  fixtures  seems  to  be  excep- 
tionally strict  in  requiring  that  they  shall  in  all  cases  be  substan- 
tially attached  to  the  freehold,  and  in  holding  that  it  is  not  suffi- 
cient to  make  personal  chattels  a  part  of  tlie  freehold  that  they 
are  attached  to  the  building  in  which  they  are  used  in  a  manner 
adapted  to  keep  them  steady,  or  that  they  are  essential  to  the 

^  7  C.  B.  N.  S.  115.  3  Winslow  v.  Merchants'  Insurance  Co. 

2  Fisher  v.  Dixon,  12  CI.  &  F.  312,  4  Met.  (Mass.)  306. 

326 


RULES    FOR    DETERMINING   FIXTURES.  [§  443. 

occupation  of  the  building  for  the  business  carried  on  in  it.  "  The 
rule  requiring  actual  annexation,"  says  Mr.  Justice  Bennett,^  "  is 
not  affected  by  those  cases  where  a  constructive  annexation  has 
been  held  sufficient.  These  cases  may  be  regarded  as  exceptions 
to  the  general  rule,  or  else  as  cases  where  the  things  were  mere 
incidents  to  the  freehold,  and  became  a  part  of  it,  and  passed  with 
it,  upon  a  principle  different  from  that  of  its  being  a  fixture."  It 
was  moreover  said  that  reference  must  be  had  not  only  to  the 
annexation  but  also  to  the  object  and  purpose  of  it;  and  that  to 
change  the  nature  and  legal  qualities  of  a  chattel  into  a  fixture 
requires  not  only  a  positive  act  on  the  part  of  the  person  making 
the  annexation,  but  also  that  his  intention  to  make  this  change 
should  particularly  appear ;  and  that  if  this  intention  be  left  in 
doubt,  the  article  should  still  be  regarded  as  personal  property. 
It  was  accordingly  held  in  this  case  that  in  a  mortgage  of  a  mill 
for  manufacturing  paper,  the  iron  shafting  used  to  communicate 
the  motive  power  to  the  machinery,  and  fastened  to  the  building 
by  means  of  bolts,  should  be  regarded  as  a  constituent  part  of  the 
mill,  and  therefore  as  included  in  a  mortgage  of  that ;  but  that  a 
large  iron  boiler  supported  by  brick-work,  laid  on  a  stone  founda- 
tion placed  on  the  ground  near  the  centre  of  the  building,  and 
also  the  machines  for  grinding  rags  into  pulp,  the  paper  presses, 
and  other  machinery,  were  no  part  of  the  real  estate,  as  between 
the  mortgagor  and  mortgagee. 

This  decision  was  followed  by  another  to  like  effect  in  the  same 
court,  holding  that  while  the  steam-engine  and  boilers  used  in  a 
marble  mill  were  fixtures  as  between  mortgagor  and  mortgagee, 
yet  the  saw  frames,  though  fastened  to  the  building  by  bolts,  were 
not  such  fixtures.  The  manner  in  which  they  were  attached  to 
the  building  was  not  considered  to  be  such  as  to  operate  to  change 
their  character  as  chattels.^ 

443.  Statutory  provisions  in  regard  to  mortgages  of  fixt- 
ures. —  In  Vermont  it  is  provided  by  statute  that  machinery 
attached  to  or  used  in  any  shop,  mill,  printing-office,  or  factory, 
may  be  mortgaged  by  deed,  executed,  acknowledged,  and  recorded 
in  the  same  manner  as  deeds  of  real  estate  ;  and  shall  have  the 

1  Hill  V.  Wentworth,  28  Vt.  429.  Fullam  v.  Stearns,  30  Vt.  443  ;  Bartlett  v. 

2  Swectzer  v.  Jones,  35  Vt.  317  ;  and  see     Wood,  32  Vt.  372. 

327 


§  444.]  FIXTUEES. 

same  effect,  and  may  be  assigned,  discharged,  or  foreclosed  in  the 
same  manner.^ 

In  Connecticut,  it  is  provided  that  the  fixtures  of  a  manu- 
facturing or  mechanical  establishment,  or  of  a  printing  or  pub- 
lishing house,  the  furniture  of  a  dwelling-house,  and  the  hay  in 
a  barn,  may  be  mortgaged  with  the  realty  when  the  mortgage 
contains  a  particular  description  of  the  machinery,  furniture,  or 
other  property,  to  the  same  effect  as  if  the  same  were  a  part  of 
the  real  estate.  The  same  may  be  mortgaged  separate  from  the 
realty  if  particularly  described,  and  the  deed  be  executed,  acknowl- 
edged, and  recorded  in  all  respects  as  a  mortgage  of  land.^ 

2.  Machinery  in  Mills. 

444.  Intention  as  to  fixtures  in  a  mill.  —  A  distinction  is 
properly  made  between  such  fixtures  in  a  mill  as  are  indispensable 
to  its  use  as  a  mill,  and  the  movable  machines  used  in  it,  which 
may  be  dispensed  with  upon  a  change  in  business  to  which  the 
mill  may  be  readily  adapted.^  Of  the  former  class  are  such  as  are 
used  for  furnishing  the  motive  power  ;  and  if  the  mill  is  adapted 
to  one  business  only,  the  machinery  necessary  for  that  business 
may  be  included  in  the  same  class.  Of  the  latter  class  are  mov- 
able machines  used  in  a  mill  adapted  to  various  kinds  of  business, 
which  may  be  wholly  set  aside,  and  still  the  value  and  usefulness 
of  the  mill  property  would  not  be  materially  impaired.  Such  ma- 
chinery, not  being  indispensable  to  the  enjoyment  of  the  realty,  is 
not  considered  a  part  of  it,  and  does  not  pass  by  a  mortgage  of 
it.*  There  is  no  certain  criterion  by  which  to  determine  in  all 
cases  what  belongs  to  the  one  class  and  what  to  the  other.  Dif- 
ferent courts  decide  differently  in  regard  to  the  same  articles ; 
and  even  the  decisions  of  the  same  court  do  not  always  seem  to 
be  perfectly  consistent.  The  varying  circumstances  of  the  cases 
seem  sometimes  to  have  an  immediate  influence  upon  the  deter- 
mination of  the  courts,  greater  than  the  statement  of  them  in  the 

1  Gen.  Stat.  p.  640,  §§  5  &  6.  the  articles  in  controversy  "  must  be  con- 

^  Gen.  Stat.  p.  481.  sidered  as  personal  property,  because,  al- 

8  Farrar  v.  Chauifetete,  5  Den.  (N.  Y.)  though  in  some  sense  attached  to  the  free- 

527.  hold,  yet  they  could  be  easily  disconnected, 

*  Rogers  v.  Brokaw,  25  N.  J.  Eq.  496  ;  and  were  capable  of  being  used  in  any 

Gale  V.  Ward,  14  Mass.  352.     In  the  lat-  other    building   erected    for    similar    pur- 

ter  case,   Mr.  Chief  Justice  Parker  said  poses." 

328 


MACHINERY    IN    MILLS.  [§  445. 

reports  would  seem  to  warrant.  But  in  doubtful  cases,  where  the 
mode  and  extent  of  the  annexation  of  the  chattels  to  the  realty  do 
not  determine  their  character  as  fixtures,  the  intention  with  which 
they  were  put  upon  the  estate,  whether  for  permanent  use  or  for 
a  temporary  purpose,  comes  in  with  a  controlling  influence  to 
settle  the  doubt.^  This  intention  is  to  be  gathered  not  merely  or 
chiefly  from  the  manner  in  which  the  chattels  are  annexed  to  the 
realty,  but  from  the  character  of  the  improvement,  whether  it  is 
essential  to  the  proper  use  of  the  realt3^2 

A  mortgage  was  made  of  certain  land,  and  the  mills  thereon.^ 
In  the  mills  were  various  articles  of  machinery  for  carding,  spin- 
ning, and  preparing  cotton  yarn  and  cotton  twine.  These  were 
subsequently  seized  upon  an  execution  against  the  mortgagor, 
and  were  claimed  as  well  by  the  mortgagee.  It  appeared  that 
the  machines  might  be  easily  removed  without  injury  to  them  or 
to  the  building,  and  might  be  used  for  the  same  purpose  in  any 
other  building.4  The  court  held  that  they  were  not  properly  fixt- 
ures, and  therefore  not  subject  to  the  mortgage.  Under  quite 
similar  circumstances  a  mortgage  of  a  woollen  factory  was  held 
not  to  pass  the  looms  used  in  it  for  the  manufacture  of  broad- 
cloth, and  merely  fastened  to  the  floor  by  screws  to  keep  them  in 
their  places.^  In  these  cases  the  intention  was  held  to  govern  the 
character  of  the  articles  under  consideration.  It  is  to  be  ob- 
served, however,  that  other  courts  have  decided  cases  quite  simi- 
lar, if  not  altogether  like  these  cited  from  the  New  York  reports, 
directly  contrary  to  the  decisions  in  these  ;  and  it  is  to  be  further 
observed  that  the  policy  of  the  decisions  in  this  state  seems  to  be 
to  favor  the  treating  of  articles  fixed  to  the  realty  as  chattels. 

445.  A  mortgagee  of  the  realty  as  against  a  mortgagee  of 
the  fixtures  may  hold  them.  —  In  a  late  case  in  IMassachusetts 
the  right  to  certain  machinery  in  a  building  used  as  a  machine- 

1  Kelly  V.  Austin,  46  111.  156,  per  cited  in  this  section,  and  Walmsley  v. 
Walker,  J.  Milne,  7  Com.  B.  N.  S.  118. 

2  Green  v.  Phillips,  26  Gratt.  (Va.)  752.  ^  Murdock  v.  Gifford,  18  N.  Y.  28.     In 

3  Vanderpoel  v.  Van  Allen,  10  Barb,  the  Supreme  Court  it  was  held  that  the 
(N.  Y.)  157.  See,  also,  Cresson  i-.  Stout,  morteage  carried  the  looms,  on  the  ground 
17  Johns.  (N.  Y.)  116.  that  they  were  intended  to  be  a  perma- 

*  The  highest  authorities  agree  in  hold-  uent  and  essential  part  of  the  woollen  fac- 
ing that  these  facts  alone  should  have  little  tory.  Murdock  v.  Harris,  20  Barb.  (N.  Y.) 
weight  in  deciding  the  question.    See  cases    407. 

329 


§  445.]  FIXTURES. 

shop,  was  contested  between  a  mortgagee  of  the  real  estate,  and 
a  mortgagee  of  the  machinery  described  as  personal  property.^ 
Before  either  of  the  mortgages  was  made  the  mortgagor  owned 
the  machine-shop,  and  also  the  machinery,  and  used  both  for  man- 
ufacturing purposes.  It  was  held  that  such  machines  and  their 
appurtenances  as  were  specially  adapted  to  be  used  in  the  shop 
and  were  annexed  to  it  passed  by  the  mortgage  of  the  real  estate. 
In  this  class  were  included  punches,  polishing  frames,  vibrators, 
a  polisher  and  pan-blower,  the  pulleys,  shafting,  and  hangers. 
These  were  bolted  or  screwed  to  the  floors  or  timbers  of  the  build- 
ing, although  it  appeared  that  the}'' could  be  removed  without  sub- 
stantial injury  to  it.  The  wheels  belonging  to  tlie  polishing  ma- 
chines were  placed  in  the  same  class,  although  they  could  be 
detached  and  removed  without  injury.  But  other  articles  not 
appearing  to  be  essential  parts  of  the  shop,  and  not  attached  to  it, 
were  held  not  to  pass  by  the  mortgage  of  the  real  property,  but 
by  the  mortgage  of  the  personalty.  Of  these  articles  not  con- 
sidered fixtures  in  any  sense  of  the  word  were  the  lathes  fastened 
to  a  bench  by  screws,  and  operated  by  a  foot  movement ;  grind- 
stones resting  upon  frames  standing  upon  the  floor  ;  a  rattler  and 
frame,  tack  machines,  the  slitter,  the  anvils,  the  vises,  the  lathes, 
and  a  portable  forge. 

In  a  case  in  Ohio  a  similar  question  arose  between  the  holder 
of  a  chattel  mortgage  of  the  fixtures  and  a  mortgagee  of  the 
realty  in  respect  to  the  boilers,  engines,  saws,  and  gearing  of  a 
steam  saw-mill. 2  The  chattel  mortgage  was  made  before  the 
articles  were  annexed  to  the  property,  but  it  recited  that  they 
were  designed  to  be  used  in  the  mortgagor's  saw-mill,  and  power 
was  given  the  mortgagees  to  take  possession  of  them  upon  de- 
fault, whether  they  should  be  attached  to  the  freehold  and  in  law 
become  a  part  of  the  realty  or  not.  The  mortgage  of  the  real 
estate  was  afterwards  taken  without  notice  of  this  agreement. 
The  record  of  the  chattel  mortgage  was  constructive  notice  only 
of  an  incumbrance  upon  chattels  ;  but  when  the  mortgage  of  the 
real  estate   was   made   these  things   were    not   chattels   but  real 

1  Pierce  v.  George,  108  Mass.  78;  and  2  Brennan   v.    Whitaker,    15    Ohio    St. 

see,  also,  Winslow  v.  Merchants'  Ins.  Co.  446.    For  a  similar  case  with  like  decision, 

4  Met.  (Mass.)  306;  Parsons  v.  Copelaud,  seeFrankland  v.  Moulton,  5  Wis.  1.     See, 

38    Me.    537;    Richardson   v.    Copeland,  also,   Fortman  v.  Goepper,    14  Ohio  St. 

6  Gray  (Mass.),  .536;  Millikin  v.  Arm-  558;  Voorhees  y.  McGinnis,  48  N.  Y.  278. 
strong,  17  Ind.  456. 

330 


MACHINERY    IN    MILLS.  [§  446. 

estate,  and  the  record  of  the  mortgage  as  a  chattel  mortgage  was 
no  notice  to  the  mortgagee  of  the  realty.  Tlie  court  declared 
that  it  devolved  upon  the  mortgagee  of  the  chattels  who  sought 
to  change  the  legal  character  of  the  propert}^  after  it  was  annexed 
to  the  realty,  and  to  create  incumbrances  upon  it,  either  to  pur- 
sue the  mode  prescribed  by  law  for  incumbering  the  kind  of  estate 
to  wliich  it  appeared  to  the  world  to  belong,  and  for  giving  notice 
of  such  incumbrance  ;  or,  otherwise,  take  the  risk  of  its  loss  in 
case  it  should  be  sold  and  conveyed  as  part  of  the  real  estate  of  a 
purchaser  without  notice.^  As  against  a  mortgagee  of  the  realty 
to  sustain  a  claim  to  the  fixtures,  there  must  be  either  an  actual 
severance  of  them  previously  made,  or  actual  notice  of  the  agree- 
ment by  the  mortgagor  that  they  should  be  severed. 

446.  A  steam-engine  and  boiler,  with  the  appurtenances  be- 
longing to  them,  used  for  furnishing  the  motive  power  of  a  mill, 
together  with  the  shafts  and  pulleys  connected  with  the  engine, 
are  fixtures,  and  pass  to  a  mortgagee  of  the  realty.^  The  ma- 
chinery of  the  motive  power,  whether  a  steam-engine  or  a  water- 
wheel,  and  all  the  shafting  and  other  means  of  communicating 
this  power,  are  as  a  general  rule  fixtures.^  A  steam-engine  and 
boilers  fixed  in  a  mill  by  the  mortgagor  after  the  execution  of 
the  mortgage  become  subject  to  it.*  It  is  not  material  that  they 
are  the  property  of  another,  as  for  instance  that  they  were  leased 
to  the  mortgagor,  if  he  annexes  them  to  the  freehold  with  the 
consent  of  the  owner.^  Even  if  they  were  subject  at  the  time 
to  a  chattel  mortgage,  this  would  not  hold  against  the  mortgage 
of  the  realty  after  they  are  attached  to  it.^  Nor  does  it  make 
any  difference  that  although  erected  in  a  permanent  manner  they 

1  PerWhite,J.,iuBrennauy.  Whitaker,  Monson  &  Brimtield  Manf.  Co.  3  Mass. 
supra.     He    dissents  from    the   ruling   in     459. 

Ford  V.  Cobb,  20  N.  Y.  344,  where  it  was  *  Winslow    v.   Merchants'   Ins.   Co.    4 

held   that   an  agreement  evidenced  by  a  Met.   (Mass.)    306;  McKim   v.  Mason,  3 

chattel  mortgage  was  effectual  against  a  Md.  Ch.  Dec.  186  ;  Rice  v.  Adams,  4  Har. 

subsequent  purchaser  of  the  land  without  (Del.)   332;  see  when   may  be   removed, 

notice  ;  and  cites  to  the  contrary  Richard-  Randolph  v.  Gywnne,  7  N.  J.  Eq.  88. 

son  V.  Copeland,  6  Gray  (Mass.),  536,  and  ^  Fryatt  v.  Sullivan  Co.  5  Hill  (N.  Y.), 

other  cases.  116  ;   and  see  Roberts  v.  Dauphin  Deposit 

2  Harris  v.  Haynes,  34  Vt.  220;  Sweet-  Bank,  19  Pa.  St.  71. 

zer  V.  Jones,  35  Vt.  317.  "^  Frankland  v.  Moulton,  5  Wis.  1  ;  Voor- 

8  Hill  V.  Wentworth,  28  Vt.  429 ;  Keve     hees  v.  McGinuis,  48  N.  Y.  278. 


Paxton,  26  N.  J.  Eq.   107  ;  Powell  v. 


331 


§§  447,  448.]  FIXTURES. 

can  be  removed  without  injury  to  the  building  in  which  they  are 
placed  or  with  which  they  are  connected.^  A  mortgage  of  a 
factory  by  a  lessee  passes  a  steam-engine  used  in  it  to  the  mort- 
gagee, although  the  lessor  could  not  claim  it.^ 

447.  A  shingle  machine  put  into  a  mill  by  a  mortgagor  after 
the  execution  of  a  mortgage  of  the  freehold  becomes  a  part  of 
the  mortgage  security.^  Mill  saws  attached  to  a  saw-mill  and 
used  in  it  become  a  part  of  the  realty,  and  subject  to  a  mort- 
gage of  the  mill  previously  made.*  So  also  a  machine  for  turning 
kegs,  a  machine  for  jointing  staves,  and  a  machine  for  cutting 
staves,  were  held  to  pass  by  a  mortgage  of  a  keg  factory  in  which 
they  were  used,  and  to  which  they  were  attached.^  But,  on  the 
other  hand,  a  planing  and  matching  machine,  and  a  machine  for 
making  mouldings,  used  in  a  sash  and  blind  factory,  were  held 
not  to  pass  by  a  mortgage  of  the  realty.*^  To  constitute  such 
machines  fixtures,  they  must  be  actually  annexed  to  the  freehold 
in  such  a  way  as  to  evince  an  intention  of  making  them  a  perma- 
nent accession  to  the  freehold.'' 

448.  Looms  in  a  mill.  —  In  a  case  still  more  recent  these 
rules  were  applied  to  the  determination  of  the  question  whether 
looms  in  a  mill  passed  by  a  mortgage  of  it  in  which  they  were 
not  named.^  The  mortgage  was  of  a  mill  "  with  the  warehouse, 
counting-room,  engine-house,  boiler-house,  weaving-shed,  wash- 
house,  gas-works,  and  reservoirs  belonging,  adjoining,  or  near 
thereto,  and  also  the  steam-engine,  shafting,  going-gear,  machinery, 
and  all  other  fixtures  whatever,"  afiixed  to  the  land  and  prem- 
ises.    The  assignees  in  bankruptcy  of  the  mortgagor  took  posses- 

1  Sparks  w.  State  Bank,  7  Blackf.  (Ind.)  a  purchaser  of  the  real  estate  under  the 
469;  Voorhees  v.  McGinnis,  supra.  execution  as  parcel  of  the  realty. 

2  Day  v.  Perkins,  2  Sandf.  (N.  Y.)  Ch.  *  Burnside  v.  Twitchell,  43  N.  H.  390. 
359.  5  Laflin  v.   GrifHths,  35  Barb.  (N.  Y.) 

8  Corliss  V.  McLagin,  29   Me,  115.     In  58;    and    see    Snedeker    v.   Warring,   2 

Trull  17.  Fuller,  28  Me.  545,  the  owner  of  Kern.  (N.  Y.)  174;  Walker  v.  Sherman, 

a  saw-mill  made  a  mortgage  of  a  clap-  20  Wend.  (N.  Y.)  639. 
board  machine  and  shingle  machine  set  up         6  Rogers  v.  Brokaw,  25  N.  J.  Eq.  496. 
in  the  saw-mill  and  used  there,  which  was         ^  Blancke  v.  Rogers,  26  N.  J.  Eq.  563. 
recorded  as  a  personal  mortgage.     Subse-        ^  Holland  v.   Hodgson,  L.   R.  7   C.  P. 

quently  a  creditor  of  the  mortgagor  levied  328  ;  41  L.  J.  C.  P.  N.  S.  146  ;  20  W.  R. 

an  execution  upon  the  land  and  mill,  and  990. 
it  was  held  that  these  machines  passed  to 

332 


MACHINERY   IN  MILLS.  [§  448. 

sion  of  and  sold  among  other  things  a  large  number  of  looms  that 
were  in  the  mill.  Each  loom  rested  upon  four  feet,  and  was  attached 
to  the  floor  by  means  of  a  wooden  plug  driven  through  each  foot. 
The  mortgagee  claimed  the  looms  as  part  of  his  security,  and  the 
Court  of  Common  Pleas  gave  judgment  in  his  favor,  and  this 
was  affirmed  by  the  Court  of  Exchequer  Chamber.  In  the  latter 
court  Mr.  Justice  Blackburn  said :  "  Since  the  decision  of  this 
court  in  Climie  v.  Wood,^  it  must  be  considered  as  settled  law 
(except  perhaps  in  the  House  of  Lords),  that  what  are  commonly 
known  as  trade  or  tenants'  fixtures  form  part  of  the  land,  and  pass 
by  a  conversance  of  it ;  and  that  the  person  who  erected  those 
fixtures,  if  he  was  a  mortgagor  in  fee,  has  no  right  as  against  his 

mortgagee  to  sever  them  from  the  land It  was  admitted, 

and  we  think  pi'operly  admitted,  that  where  there  is  a  convey- 
ance of  the  land  the  fixtures  are  transferred,  not  as  fixtures,  but 
as  part  of  the  land,  and  the  deed  of  transfer  does  not  require 
registration  as  a  bill  of  sale."  The  learned  judge  further  says 
that  it  has  been  contended,  and  justly,  that  Hellaivell  v.  East- 
wood"^ is  very  like  the  present  case,  with  this  exception,  that 
there  the  tenant  had  a  limited  interest  only,  whereas  here  he 
has  the  fee  ;  and  if  that  case  should  apply  to  this  case,  it  would 
follow  (but  for  that  exception,  perhaps)  that  the  looms  which 
were  in  question  remained  chattels.  But  that  case  was  decided 
in  1851.  In  1853,  the  Court  of  Queen's  Bench  had,  in  Wiltshear 
V.  Cottrell,^  to  consider,  what  articles  passed  by  the  conversance 
in  fee  of  a  farm  ;  and  there  the  court  decided  that  a  certain 
threshing-machine  inside  a  barn,  fixed  by  screws  and  bolts  to 
four  posts  which  were  let  into  the  earth,  passed  by  the  convey- 
ance. It  seems  difficult  to  point  out  how  the  threshing-machine 
in  that  case  was  more  for  the  improvement  of  the  inheritance  of 
the  farm  than  the  looms  in  the  present  case  were  for  the  imj)rove- 
ment  of  the  manufactory.  Then  there  was  the  case  of  3Iather 
V.  Fraser,'^  in  1856,  and  that  of  Walmsley  v.  Milne,^  in  1859,  in 
which  similar  decisions  to  that  in  Wiltshear  v.  Cottrell  were  given. 
These  cases  "  seem  authorities  for  this  principle,  —  that  when  an 
article  is  affixed  by  the  owner  of  the  fee,  though  only  affixed  by 
bolts  and  screws,  it  is  to  be  considered  as  part  of  the  land,  at  all 

1  L.  R.  3  Exch.  257  ;  and  on  appeal,  L.  3  j  E.  &  B.  674. 
E.  4  Exch.  328.  *  2  Kay  &  J.  536. 

2  6  E.xch.  295.     This  case  also  related  *  7  C.  B.  (N.  S.)  115. 
to  cotton-spinning  machinery. 

333 


449.] 


FIXTURES. 


events  where  the  object  of  setting  up  the  article  is  to  enhance 
the  value  of  the  premises  to  which  it  is  annexed,  for  the  purposes 
to  which  those  premises  are  applied.  The  threshing-machine  in 
Wiltshear  v.  Cottrell  was  affixed  by  the  owner  of  the  fee  to  the 
barn  as  an  adjunct  to  the  barn,  and  to  improve  its  usefulness  as 
a  barn,  in  much  the  same  way  as  the  hay-cutter  in  Walmsley  v. 
Mihie  was  affixed  to  the  stable  as  an  adjunct  to  it,  and  to  im- 
prove the  usefulness  of  the  stable.  And  it  seems  difficult  to  say 
that  the  machinery  in  Mather  v.  Fraser  was  not  as  much  affixed 
to  the  mill  as  an  adjunct  to  it,  and  to  improve  the  usefulness 
of  the  mill  as  such,  as  either  the  threshing-machine  or  tlio  hay- 
cutter."  In  conclusion,  he  says  it  is  of  great  importance  that  the 
law  as  to  what  is  the  security  of  a  mortgage  should  be  settled,  and 
that  these  decisions  should  not  be  reversed  unless  clearly  wrong. 

449.  Cotton  looms.  —  Under  a  mortgage  of  a  mill  for  the 
manufacture  of  cotton  cloth,  with  the  appurtenances,  "  together 
with  the  steam-engines,  boilers,  shafting,  piping,  mill-gearing, 
gasometers,  gas-pipes,  drums,  wheels,  and  all  and  singular  other 
the  machines,  fixtures,  and  effects  fixed  up  in  or  attached  or  be- 
longing to  the  said  mill  or  factory,  buildings,  or  premises,"  the 
question  arose,  upon  a  subsequent  sale  of  the  estate  under  a  power 
of  sale  contained  in  the  mortgage,  whether  a  large  number  of 
looms  for  weaving  cotton  yarn  into  cloth,  and  which  were  set  into 
the  floors  without  any  fastening,  passed  by  mortgage,  and  by  the 
subsequent  sale.  Lord  Romilly,  giving  the  decision  of  the  Court 
of  Chancery ,1  said  :  "  My  opinion  is,  that  those  words  mean  that 
the  mill  and  everything  that  properly  belongs  to  the  mill  is  the 
thing  that  is  mortgaged.  I  do  not  think  that  the  furniture  of  the 
mill  does  properly  belong  to  the  mill  ;  it  is  liable  to  be  changed 
from  time  to  time I  do  not  doubt  that  looms  are  machin- 
ery in  one  sense,  but  the  question  is,  are  they  properly  sj)eaking 
machinery  belonging  to  the  mill  ?  In  one  sense,  no  doubt,  they 
belong  to  the  mill,  because  they  are  put  into  the  mill  ;  but  I  read 
those  words  as  '  belonging  essentially  to  the  mill,'  and  forming 
necessarily  a  part  of  it,  whatever  may  be  the  purpose  to  which 
the  mill  may  be  applied.  To  whatever  purpose  the  mill  may  be 
applied,  the  steam-power,  the  gas-lighting,  and  the  like,  do  form 

1  Hutchinson   v.   Kay,   23   Beav.   413;     also  relating  to  machineiy  for  the  manit- 
8ce,  also,  McKiiu  v.  Mason,  3  Md.  Ch.  186,     facture  of  cotton. 

334 


MACHINERY   IN   MILLS.  [§  450. 

a  part  of  it,  but  the  others  do  not,  being  merely  accidental,  and 
no  more  form  a  part  of  the  mill  than  a.  carpet  forms  part  of  a 
house.  If  a  house  and  all  the  things  belonging  to  the  house 
were  assigned,  that  would  not  necessarily  include   the  furniture 

unless  it  was  so  specified I  am  clear  the  looms  are  not 

fixtures  in  any  proper  sense  of  the  term." 

450.  Machinery  of  a  silk  mill.  —  A  silk  manufacturer  mort- 
gaged certain  land  and  "  also  all  that  silk-mill  there  erected  or  in 
the  course  of  erection,  and  all  other  buildings  then  or  thereafter 
to  be  erected  thereon  ;  and  also  all  those  the  steam-engine  or 
steam-engines,  boilers,  steam-pipes,  main  shafting,  mill-gearing, 
millwright's  work,  and  all  other  machinery  and  fixtures  whatso- 
ever there  erected  or  set  up,  or  to  be  thereafter,  &c.,  upon  the  said 
plat  of  land,  mill,  and  premises,  with  the  appurtenances."  ^  A 
second  mortgage  was  made  more  comprehensive  in  terms,  and  the 
first  mortgagee  having  sold  the  property  under  an  order  of  court, 
the  question  arose  upon  a  claim  by  the  second  mortgagee  whether 
the  spinning-mills  and  other  machinery  passed  under  the  first 
mortgage.  The  Master  of  the  Rolls  held  that  only  such  machin- 
ery passed  by  the  mortgage  under  the  words  "  other  machinery  " 
as  was  of  the  same  nature  with  the  articles  specified  in  the  enu- 
meration previously  made,  and  that  therefore  only  the  machin- 
ery used  for  the  purpose  of  giving  power  to  the  mill  was  included 
in  the  mortgage.  On  appeal,  however,  it  was  decided  that  all  the 
machinery  placed  in  the  mill,  whether  for  creating  power  or  for 
being  moved,  was  included  in  the  mortgage.  "  It  seems  rather 
improbable,"  said  Lord  Chancellor  Campbell,  '•  that  the  parties 
should  have  contemplated  such  a  damaging  disruption  of  the 
machinery  as  must  take  place  if  the  mortgagees,  in  seeking  to 
make  good  their  security,  must  tear  in  pieces  the  machinery  in 
the  mill,  removing  and  selling  one  half  of  it,  which  would  be 
comparatively  of  little  value  without  the  other  half."  ....  He 
concurs  with  the  Vice-Chancellor  Page  Wood,  in  his  general 
view  of  the  law  upon  this  subject  in  Mather  v.  Fraser^  and  is  of 
opinion  that,  according  to  the  true  construction  of  the  mortgage 
deed,  all  the  disputed  articles  are  included  in  the  mortgage  to  the 
defendants. 

1  Haley  v.  Hammersley,  3  De  Gex,  F.  &        2  o  r.  &  J.  536. 
J.  587  ;  9  W.  R.  562. 

335 


§  451.]  FIXTURES. 

451.  A  mortgage  of  an  iron  rolling-mill  was  held  to  pass  the 
entire  set  of  rolls  used  in  the  mill,  whether  in  place  and  fixed  for 
use  or  temporarily  detached. ^  The  rolls,  being  adapted  to  the 
manufacture  of  bars  of  different  shapes  and  sizes,  cannot  all  be 
used  at  once  ;  but  they  are  equally  a  part  of  the  mill  when  un- 
fixed to  give  place  to  others.  "  Duplicates  necessary  and  proper 
for  an  emergency,"  said  Chief  Justice  Gibson,  "  consequently 
follow  the  realty,  on  the  principle  by  which  duplicate  keys  of  a 
banking-house  or  the  toll-dishes  of  a  mill  follow  it."  A  similar 
decision  was  made  in  a  recent  case  in  England.^  Mr.  Justice 
Gifford  giving  the  opinion  said  :  "  There  appear  to  be  connected 
with  rolling  machines  parts  which,  beyond  all  doubt,  are  not  fixed 
in  the  strict  sense  of  the  term  ;  but  it  is  in  evidence  that  if  a 
machine  is  ordered  it  is  sent  with  one  set  of  rolls,  and  it  is  quite 
manifest  that  without  rolls  the  machine  could  not  do  any  part  of 
the  work  for  which  it  is  made.  One  set  of  rolls  clearly  passes. 
But  we  have  here  duplicate  rolls,  and  with  reference  to  them  —  I 
am  not  speaking  of  rolls  which  can  be  considered  as  in  any  sense 
unfinished,  but  of  duplicate  rolls  which  have  been  actuallj''  fitted 
to  the  machine  —  I  cannot  see  why,  if  one  set  of  rolls  passes,  the 
duplicate  rolls  should  not  pass  also.  It  comes,  in  fact,  to  this, 
that  the  machine  with  one  see  of  rolls  is  a  perfect  machine,  but 

the  machine  with  a  duplicate  set  is  a  more  perfect  machine 

The  fact  is,  that  whether  there  is  one  set  of  rolls  or  a  duplicate 
set,  they  are  each  part  and  parcel  of  the  machine,  and  come  within 
the  term  '  belonging  to  the  machine  as  part  of  it.'  ^  Then  comes 
the  case  as  to  the  different  sizes  of  rolls.  But  if  the  duplicates  of 
the  same  size  pass,  it  follows  that  the  rolls  of  different  sizes  pass, 
if  they  render  the  machine  still  more  perfect  than  if  the  rolls  were 

all  of  the  same  size But  I  cannot  hold  that  the  rolls  which 

have  never  been  fitted  to  the  machine,  and  have  never  been  used 
in  the  machine,  and  which  require  something  more  to  be  done  to 
them  before  they  are  fitted  to  the  machine,  belong  to  the  machine, 
or  that  they  are  essential  parts  of  it." 

In  the  same  case  it  was  held  that  the  straightening  plates 
embedded  in  the  floor  were  also  fixtures,  but  that  the  weighing 
machines  were  not. 

1  Voorhis  v.  Freeman,  2  Watts  &  S.  '  Dictum  of  Lord  Cottenham  in  Fisher 
(Penn.)  116.  ».  Dixon  12  CI.  &  F.  312. 

^  Ex  parte  Astbury ,  L.  K.  4  Ch.  App.  630. 
386 


ROLLING   STOCK    OF   RAILWAYS.  [§  452. 

3.  Rolling  Stock  of  Raihoays. 

452.  "Whether  the  rolling  stock  and  fixtures  of  a  railroad 
are  personal  property',  or  are  in  some  sense  fixtures,  and  therefore 
pass  by  a  mortgage  of  the  realty,  is  a  question  that  has  been  much 
discussed  and  the  decisions  are  conflicting.  When  this  question 
was  first  presented  to  the  Supreme  Court  of  New  York,  it  was  de- 
cided that  the  rolling  stock  was  to  be  deemed  fixtures. ^  jNlr.  Jus- 
tice Strong,  delivering  the  opinion  of  the  court,  said  :  "  The  prop- 
erty of  a  railway  company  consists  mainly  of  the  road-bed,  the 
rails  upon  it,  the  depot  erections,  and  the  rolling  stock,  and  the 
franchises  to  hold  and  use  them.  The  road-bed,  the  rails  fastened 
to  it,  and  the  buildings  at  the  depots,  are  clearly  real  property. 
That  the  locomotives  and  passenger,  baggage,  and  freight  cars  are 
a  part,  and  a  necessary  part,  of  the  entire  establishment,  there 
can  be  no  doubt.  Are  they  so  permanently  and  inseparably  con- 
nected with  the  more  substantial  realty  as  to  become  construc- 
tiveh'  fixtures  ?  ....  It  may  be  that  if  an  appeal  should  be  made 
to  the  common  sense  of  the  community,  it  would  be  determined 
that  the  term  fixtures  could  not  well  be  applied  to  such  movable 
carriages  as  railway  cars.  But  such  cars  move  no  more  rapidly 
than  do  pigeons  from  a  dove-cote  or  fish  in  a  pond,  both  of  which 
are  annexed  to  the  realty."  The  learned  judge  then  notices  that 
railway  cars  are  a  necessary  part  of  the  entire  establishment; 
that  their  wheels  are  fitted  to  the  rails ;  that  they  are  peculiarly 
adapted  to  the  use  of  the  railway,  and  cannot  be  used  for  any 
other  purpose  ;  and  he  concludes  that  they  are  necessary  inci- 
dents of  the  real  estate  in  a  mortgage  of  it.^ 

This  view  is  taken  also  by  the  courts  of  several  states.  In  Illi- 
nois it  is  held  that  the  rolling  stock,  as  well  as  the  rails,  ties, 
chairs,  spikes,  if  intended  to  be  attached  to  the  realty,  is  subject 
to  a  mortgage  of  the  road.^  Like  decisions  have  been  made  in 
Maryland  *  and  Pennsylvania.-^ 

1  Fanners'  Loan  &  Trust  Co.  v.  Hen-  with  machinery  not  necessary  for  the  use 
drickson,  25  Barb.  (N.  Y.)  484.  of  the  road.    Brainerd  v.  Peck,  34  Yt.  496. 

2  See,  also,  Morrill  v.  Noycs,  56  Me.  458  ;  3  Palmcr  r.  Forbes,  23  111.  301  ;  see,  also, 
Pierce  v.  Emery,  32  N.  II.  484  ;  Haven  v.  Hunt  v.  Bullock,  23  111.320  ;  Titus  v.  Gin- 
Emery,  33  N.  H.  66  ;  Howe  v.  Freeman,  14  heimer,  27  111.  462  ;  Constitution  1870,  art. 
Gray  (Mass.),  566;  Coopers  v.  Wolf,  15  11,  §  10,  declares  rolling  stock  personalty. 
Ohio  St.  523;  Phillips  v.  Winslow,  18  B.  *  State  v.  Northern  R.  Co.  18  Md.  193. 
Mon.  (Ky.)  431  ;  Benjamin  v.  Elmira  C.  5  phila.,  Wil.  &  Bait.  H.  Co.  v.  Woelp- 
R.  Co.  49  Barb.  (N.  Y.)  441  ;  otherwise  per,  64  Pa.  St.  366. 

VOL.  I.  22  337 


§  453.] 


FIXTURES. 


The  question  was  discussed  before  the  Supreme  Court  of  the 
United  States,  but  the  decision  turning  upon  another  point,  the 
case  is  not  an  authority  one  way  or  the  other,  altliough  the  infer- 
ence has  been  drawn  that  the  court  would  regard  the  rolUng  stock 
as  a  fixture.^ 

The  doctrine  estabhshed  by  the  Supreme  Court  of  New  York, 
in  the  case  above  cited,  that  a  mortgage  of  the  real  estate  of  a 
railway  company  carries  its  rolling  stock,  has  been  departed  from 
in  the  cases  that  have  since  been  decided  in  that  state,  and  the 
contrary  doctrine,  that  the  rolling  stock  is  personalty,  has  been 
finally  substituted  in  its  place  by  a  series  of  decisions,  the  last  of 
which  was  rendered  by  the  Court  of  Appeals  in  1873.^  The 
ground  of  the  decision  in  this  court  was  that  the  rolling  stock  is 
originally  personal  in  character,  and  it  is  subservient  to  a  mere 
personal  trade,  the  transportation  of  freight  and  passengers  ;  that 
the  track  exists  for  the  use  of  the  cars  rather  than  the  cars  for  the 
use  of  the  track  ;  and  that  there  is  no  annexation,  no  immobility 
from  weight,  and  no  localization  in  use.^ 

4.  Remedies  for  Removal  of  Fixtures. 

453.  Mortgagee  may  follow  and  take  the  fixture  wherever 
found.  —  The  rule  is  generally  established  that  fixtures  covered 
by  a  mortgage  of  the  realty,  when  improperly  removed,  may  be 
followed  by  the  mortgagee  wherever  he  can  find  them.  The 
mortgagor  himself  can  of  course  gain  no  right  to  hold  them  as 
against  the  mortgagee.  A  purchaser  from  the  mortgagor  has  no 
such  right,  because  he  is  affected  with  knowledge  of  the  exist- 
ing lien,  and  as  against  the  mortgagee,  his  purchase  is  therefore 
fraudulent  and  void.  "  Even  without  knowledge  of  the  mort- 
gage," says  Chief  Justice  Lowrie,  of  Pennsylvania,*  "  it  is  hard 
to   see  how  a   purchaser   could  be   relieved    from  this   responsi- 

1  Minn.  Co.  v.  St.  Paul  Co.  2  Wall,  that  sometimes  thej  nm  and  jm???;;  off  the 
609 ;  and  see  Pennock  v.  Coe,  23  How.  track."  This  case  was  affirmed  under  the 
117.  name  of  Hoyle  v.  Plattsburgh  &  Montreal 

2  Stevens  v.  Buffalo  &  N.  Y.  City  R.  Co.  R.  Co.  51  Barb.  45  ;  and  afterwards  hav- 
31  Barb.  (N.  Y.)  590;  Beardsley  v.  On-  ing  been  carried  to  the  Court  of  Appeals 
tario  Bank,  .31  lb.  619  ;  Bement  v.  Platts-  it  was  there  affirmed,  54  N.  Y.  314;  and 
burgh  &  Montreal  11.  Co.  47  lb.  104,  in  see  also  Randall  v.  Elwell,  52  N.  Y.  521. 
which  case  Mr.  Justice  Sutherland,  argu-  3  Per  Johnson,  Commissioner  of  Ap- 
ing that  the  engines  and  cars  are  not  af-  peals,  in  Hoyle  v.  Plattsburgh  &  Montreal 
fixed  to    the  road,   said  :    "  We  can  take  R.  Co.  supra. 

judicial  notice  of  what  everybody  knows        *  Hoskin  v.  Woodward,  45  Pa.  St.  42. 
338 


REMEDIES   FOR   REMOVAL    OF.  [§  454. 

bility  ;  for  all  purchasers,  hirers,  and  renters  are  bound  to  ascer- 
tain, or  take  the  risk  of  assuming,  the  title  of  their  vendors  and 
lessors.  But  may  not  a  mortgagor  sell  in  the  usual  way  the  lum- 
ber, firewood,  coal,  ore,  or  grain  found  gi'owing  on  the  land,  with- 
out violating  the  rights  of  the  mortgagee  ?  Yes,  he  may,  until 
the  mortgagee  stops  him  by  ejectment  or  estrepement,  for  those 
things  are  usually  intended  for  consumption  and  sale,  and  the  sale 
of  them  is  the  usual  way  of  raising  the  money  to  pay  the  mort- 
gage. But  in  the  case  of  a  factory  or  other  building  it  is  the  use 
of  it  as  it  is,  and  not  by  its  consumption  or  its  sale  by  piecemeal, 
that  all  its  profits  are  to  be  derived." 

It  has  been  held,  however,  that  when  a  fixture,  as  for  instance  a 
house  annexed  to  the  real  estate  by  the  mortgagor,  is  afterwards, 
before  the  foreclosure  of  the  mortgage,  by  him  removed  from  the 
premises  and  sold,  although  it  was  part  of  the  mortgaged  premises, 
the  mortagee  could  not  recover  it  from  the  purchaser  ;  that  by  the 
removal  he  lost  his  right  to  the  property,  though  he  might  still 
have  a  cause  of  action  for  the  waste. ^  But  justice  would  seem  to 
demand  that  one  purchasing  what  he  either  actually  or  construc- 
tively knows  to  be  mortgaged  to  another  shall  not  be  allowed  to 
shelter  himself  behind  his  wrongful  act,  and  say  that  thereby  the 
nature  of  the  property  was  changed,  and  authority  supports  this 
position. 

454.  Action  for  damages  caused  by  the  removal  of  fixtures. — 
The  mortgagee,  by  virtue  of  his  interest  in  the  property,  may  main- 
tain an  action  against  the  mortgagor  for  removing  fixtures,  and 
thereby  causing  substantial  and  permanent  injury  and  deprecia- 
tion to  the  mortgaged  estate.  The  owner  of  the  equity  has  no 
more  right  than  a  stranger  to  impair  the  security  of  the  mortgage. 
The  damages  are  measured  by  the  extent  of  the  injury,  and  not 
by  the  insufficiency  of  the  remaining  security.  The  mortgagee  is 
not  obliged  to  apply  in  the  first  place  the  property  that  remains 
at  any  valuation  whatever.  "  He  is  entitled  to  the  full  benefit 
of  the  entire  mortgaged  estate  for  the  full  payment  of  his  entire 
debt."  2 

When  such  injury  has  been  done  there  can  be  but  one  recovery 

1  Clark   V.  Reyburn,  1  Kans.  281.     To     La.  An.  117;  Biickout  v.   Swift,  27  Cal. 
like  effect  sec  Citizens'  Bank  v.  Kuapp,  22     433. 

2  Byrom  v.  Chapin,  113  i\Iass.  308. 

339 


§  455.] 


FIXTURES. 


for  it,  and  a  reasonable  satisfaction  made  in  good  faith  to  a  prior 
mortgagee  bars  an  action  by  a  subsequent  mortgagee.^  But  upon 
the  question  wliether  the  injury  had  been  settled  and  satisfied  by 
payment  to  the  first  mortgagee,  evidence  is  admissible  to  show 
that  the  articles  removed  were  of  greater  value  than  the  sum  so 
paid,  and  that  the  damage  done  to  the  premises  by  their  removal 
was  greater  than  the  value  of  the  articles  so  removed.^  In  Wis- 
consin it  is  held  the  mortgagee  after  a  decree  of  foreclosure  may 
maintain  an  action  for  an  injury  done  the  mortgaged  premises, 
either  by  the  mortgagor  or  by  a  stranger,  provided  the  security  be 
thereby  impaired  and  the  mortgagor  be  insolvent. ^ 

A  mortgagee  may  recover  the  value  of  fixtures  wrongfully  re- 
moved from  the  mortgaged  premises,  although  since  such  removal 
of  them  the  property  has  been  sold  under  a  power  in  his  mort- 
gage, and  he  has  himself  purchased  it  at  a  price  sufl&cient  to  sat- 
isfy his  claim.     His  title  is  sufficient  to  sustain  a  cause  of  action.^ 

455.  Mortgagee's  right  of  action  as  affected  by  his  not  be- 
ing in  possession.  —  A  mortgagee  not  having  possession,  or  the 
right  of  possession,  cannot  maintain  an  action  of  tort  in  the  nat- 
ure of  trespass  quare  clausum  /regit  against  a  stranger  for  break- 
ing and  entering  the  mortgaged  premises  and  removing  fixtures. 
But  the  right  to  recover  damages  for  the  value  of  the  fixtures  is 
separable  from  that  to  recover  for  "  breach  to  the  close."  ^  The 
right  of  present  possession  only  affects  the  form  of  action.  The 
right  to  recover  depends  upon  the  title,  and  not  upon  possession 
or  the  right  of  possession.  In  an  action  of  tort  for  forcibly  enter- 
ing the  house  and  removing  fixtures,  the  mortgagee,  even  before 
condition  broken,  may  recover  the  full  amount  of  damage  done  to 
the  estate  by  the  removal  without  regard  to  the  sufficiency  of  his 
security.  Until  the  whole  debt  be  paid,  he  cannot  be  deprived 
of  any  substantial  part  of  his  entire  security  without  full  redress 
therefor.  As  the  injury  affects  the  estate,  it  may  be  sued  for  di- 
rectly by  any  one  in  whom  the  legal  interest  is  vested.  "  A  sec- 
ond or  third  mortgagee,  though  not  in  possession,  has  a  sufficient 
interest  in  the  estate  to  maintain  an  action  for  such  an  injury. 

1  Byrom  v.  Chapin,  supra.  ^  Gooding?;.  Shea,  103  Mass.  360;  Page 

^  Byrom  v.  Chapin,  s?«/)ra.  v.  Eobinson,  10  Cush.  (Mass.)   99;  Wood- 

3  Jones  V.  Costigan,  12  Wis.  677.  man  v.  Francis,  14  Allen  (Mass.),  198. 
*  Laflin  v.  Griffiths,  3.5  Barb.  (N.  Y.)  58. 

340 


REMEDIES   FOR   REMOVAL   OF.  [§  455. 

Although  it  is  true  that  a  stranger  may  thus  be  liable  to  either  of 
the  several  mortgagees,  as  well  as  to  the  mortgagor,  it  does  not 
follow  that  he  is  liable  to  all  successively.  The  superior  right  is 
in  the  party  having  superiority  of  title.  But  the  defendant  can 
resist  neither,  by  merely  showing  that  another  may  also  sue  or  has 
sued.  If  he  would  defeat  the  claim  of  either,  he  must  show  that 
another  having  a  superior  right  has  appropriated  the  avails  of  the 
claim  to  himself.  The  demand  is  not  personal  to  either  mort- 
gagee, but  arises  out  of  and  pertains  to  the  estate ;  and,  when  re- 
covered, applies  in  payment,  pro  tanto,  of  the  mortgage  debt,  and 
thus  ultimately  for  the  benefit  of  the  mortgagor,  if  he  redeem."  ^ 

The  mortgagee  even  before  entering  into  possession  can  main- 
tain an  action  against  the  mortgagor,  or  any  other  person  who 
severs  and  removes  from  the  mortgaged  estate  any  articles  which- 
have  been  annexed  to  and  made  part  of  it.  It  makes  no  differ- 
ence as  against  the  mortgagee  that  the  fixtures  are  severed  by 
accident.  Therefore  if  a  building  be  partly  destroyed  by  fire, 
the  mortgagor  has  no  right  to  sell  such  parts  of  it  as  are  saved ; 
and  he  cannot  maintain  an  action  for  the  price  of  such  articles  if 
the  value  of  the  land  is  less  than  the  amount  of  the  mortgage 
debt,  and  the  mortgagee  has  entered  for  breach  of  the  condition 
and  forbidden  the  payment  to  the  mortgagor .^ 

Where  the  mortgagee  has  no  right  to  enter  and  the  mortgagor 
can  be  deprived  of  possession  only  by  a  foreclosure  and  sale,  he 
may  retain  possession  after  the  sale  until  the  delivery  of  the  deed 
to  the  purchaser  ;  but  if  he  remove  fixtures  in  the  mean  time,  the 
purchaser  may  recover  them  by  an  action  of  replevin.  The  pur- 
chaser's deed  takes  effect  by  relation  at  the  date  of  the  mortgage, 
and  passes  fixtures  subsequently  annexed  by  the  mortgagor.^ 

A  mortgagee  not  in  actual  possession  and  who  has  not  entered 
to  foreclose  cannot  maintain  trespass  against  the  owner  of  the 
equity  of  redemption  for  cutting  grass  on  the  land,  as  the  owner 
has  a  right  to  take  every  annual  crop.*  But  if  the  property  de- 
tached from  the  realty  be  fixtures  subject  as  part  of  the  realty 
to  a  mortgage,  the  mortgagee,  whether  in  possession  of  the  prem- 
ises or  not,  may  sue  for  the  recovery  of   the  things  themselves 

1  rer   Wells,  J.,  in   Gooding  v.   Shea,         3  Sands  v.  Tfeiffer,  10  Cal.  258. 

supra.  *  Woodward  f.  Pickett,  8  Gray  (Mass.), 

2  Wilmarth  v.  Bancroft,  10  Allen  (Mass.),     617. 
348. 

341 


§  455.]  FIXTURES. 

in  an  action  of  replevin  ;  ^  or  may  sue  in  trespass  for  damage 
done  the  freehold  ;  or  he  may  in  an  action  of  trover  recover  their 
value.2  A  tort-feasor  has  no  right  to  complain  of  the  form  of  the 
remedy. 

1  Laflin  v.  Griffiths,  35  Barb.  (N.  Y.)  58.  2  Hitchman  v.  Walton,  4  M.  &  W.  409. 

342 


CHAPTER  XII. 

REGISTRATION   AS  AFFECTING   PRIORITY. 

1.  Nature  and  Application  of  Registry  Acts. 

466.  In  general.  —  In  this  country  a  mortgage,  like  any  other 
conveyance  of  real  estate,  is  subject  to  registry  laws  by  which  its 
priority  depends  for  the  most  part  upon  the  priority  of  its  regis- 
tration. These  laws  in  substance  provide  for  the  recording  of  all 
deeds  properly  executed  which  affect  titles  to  real  property,  and 
of  two  or  more  conveyances  of  the  "same  estate  establish  priority 
of  title  under  that  which  is  first  recorded,  although  it  may  be  the 
last  executed. 

Every  subsequent  purchaser  is  bound  to  take  notice  of  a  deed 
in  the  line  of  title  previously  recorded,  although  he  had  no  actual 
notice  of  it.  If  he  has  relied  upon  the  representations  of  his 
gi'antor  in  regard  to  the  title  to  the  premises  without  consulting 
the  record,  which  is  alwaj's  open  to  his  inspection,  he  has  done  so 
at  his  peril ;  although  he  may  in  such  case  be  an  innocent  pur- 
chaser in  fact,  he  is  not  regarded  as  such  in  law.^ 

Systems  of  registration  of  land  titles  more  or  less  complete  have 
for  a  long  time  prevailed  in  Germany,  France,  and  Scotland,  and 
perhaps  in  other  European  states.  Yet  no  general  system  of  reg- 
istration has  ever  been  adopted  in  England. ^  In  America,  how- 
ever, registry  laws  were  enacted  in  the  several  colonies  very  soon 
after  their  settlement.  In  Massachusetts,  as  early  as  1641,  "  for 
the  avoiding  of  fraudulent  conveyances,  and  that  every  man  may 
know  what  estate  or  interest  other  men  may  have  in  any  houses, 
lands,  or  other  hereditament  they  are  to  deal  in,"  it  was  enacted 
that  "  no  mortgage,  bargain,  sale,  or  grant  made  of  any  houses  or 
lands,  rents,  or  other  hereditaments,  where  the  grantor  remains  in 

1  Buchanan  v.  International  Bank,  78        ^  gge  chapter  xiii.  on  "  Notice." 
111.  500. 

343 


§§  457,  458.]       REGISTRATION   AS   AFFECTING   PRIORITY. 

possession,  shall  be  of  any  force  against  other  persons  except  the 
grantor  and  his  heirs,  unless  the  same  be  acknowledged  before 
some  magistrate,  and  recorded."  In  the  Plymouth  colony,  con- 
veyances of  land,  including  mortgages,  were  required  to  be  re- 
corded by  a  law  enacted  five  years  before  that  of  Massachusetts 
Bay. 

457.  Title  deeds.  —  The  English  law  in  regard  to  the  posses- 
sion of  title  deeds  has  generally  no  application  in  this  country,  on 
accoiiTit  of  the  prevalence  here  of  a  general  system  of  registry. 
Under  tlie  registry  laws,  the  record  being  notice  to  all  the  world, 
it  is  not  necessar}^  that  the  mortgagee  should  have  possession  of 
the  title  papers.^  Without  the  protection  of  such  laws,  the  pos- 
session of  the  title  deeds  becomes  an  important  badge  of  title ; 
and  it  is  said  that  the  old  rule  in  English  chancery  was  that  if  a 
person  took  a  mortgage  and  voluntarily  left  the  title  deeds  with 
the  mortgagor,  he  should  be  postponed  to  a  subsequent  mortgagee, 
without  notice,  to  whom  the  title  deeds  were  delivered  ;  but  the 
later  English  doctrine  is,  that  the  mere  circumstance  of  leaving 
the  title  deeds  with  the  mortgagor  is  not,  of  itself,  sufficient  to 
produce  this  result.  There  must  be  something  like  a  voluntary 
and  unwarrantable  concurrence  of  the  first  mortgagee  in  the  mort- 
gagor's retaining  the  title  deeds,  so  that  he  really  concurs  in  a 
fraud,  or  is  grossly  negligent,  to  defeat  his  mortgage.^ 

458.  A  mortgagee  of  real  estate  is  a  purchaser  within  the 
meaning  of  the  recording  laws.  This  is  declared  by  statute  in 
some  states,  and  in  others  it  is  a  rule  of  judicial  construction. 
"  When  I  speak  of  a  purchaser  for  a  valuable  consideration," 
says  Lord  Hardwicke,  "  I  include  a  mortgagee,  for  he  is  a  pur- 
chaser ^j>ro  tanto.^^^ 

But  a  distinction  is  taken  between  a  mortgage  given  to  secure 
a  preexisting  debt,  and  one  upon  which  the  consideration  is  paid 
at  the  time  of  its  execution.  The  former,  although  given  upon  a 
valid  consideration  as  between  the  parties,  is  not  regarded  as  a 
purchase  for  a  valuable  consideration  which  will  entitle  the  mort- 
gagee  to  protection   against  prior  equities,  although  he  had  no 

1  Evans  v.  Jones,  1  Ycates  (Pa.),  174.  3  Iq  Willoughby  v.  Willoiighby,  1    T. 

2  Berry  v.  Mutual  Ins.  Co.  2  Johns.  R.  763 ;  and  see  Porter  v.  Green,  4  Iowa, 
(N.  Y.)  Ch.  603.  571 ;  Seevers  v.  Delashmutt,  11  Iowa,  174. 

344 


NATURE   AND    APPLICATION   OF   REGISTRY    ACTS.  [§  458. 

notice  of  them  when  he  took  the  mortgage.^  He  must  have  act- 
ually parted  with  some  value  or  some  right  upon  the  faith  of  the 
mortgage  and  at  the  time  of  it,  to  entitle  him  to  protection  as  a 
purchaser.  He  must  have  received  some  new  consideration,  or 
must  have  relinquished  some  security  for  a  preexisting  debt  due 
him.  2 

This  rule  requiring  the  payment  of  an  actual  consideration  at 
the  time  of  the  transaction  to  constitute  a  bond  fide  purchaser, 
within  the  meaning  of  the  recording  acts,  does  not  apply  to  any 
one  but  the  original  purchaser.  He  being  protected  by  the  re- 
cording acts  from  a  prior  unrecorded  conveyance,  any  one  who 
takes  an  assignment  from  him  is  entitled  to  the  same  protection, 
although  the  assignee  parts  with  no  valuable  consideration  for  the 
assignment,  or  even  has  actual  notice  of  the  prior  unrecorded  con- 
veyance.^ 

If  the  sole  consideration  of  a  conveyance  be  the  love  and  affec- 
tion of  the  grantor,  it  will  not  hold  against  a  prior  unrecorded 
mortgage  of  the  same  property  ;  or  against  a  mortgage  imper- 
fectly recorded.* 

But  there  are  authorities  which  hold  that  a  mortgagee  who  has 
taken  his  mortgage  in  good  faith  to  secure  a  preexisting  debt  is 

1  Pancoast  v.  Duval,  26  N.  J.  Eq.  445  ;  the  part  of  the  maker.    Doolittle  v.  Cook, 

Mingus  V.  Condit,  23    lb.  313;  Morse  v.  75  111.  354;  Manning  v.  McClure,  36  111. 

Godfrey,  3  Story,  389  ;  Gafford  v.  Stearns,  490.     In  the  latter  ca.se,  Mr.  Justice  Law- 

51  Ala.  434;  Short  v  Battle,  52  Ala.  456 ;  rence,  referring  to  Metropolitan  Bank  v. 

Zorn  V.  R.  Co*  5    S.  C.  90 ;   Manhattan  Godfrey,  supra,  said  :  "  We  do  not  desire 

Co.   V.   Evertson,  6   Paige  (N.  Y.),  457  ;  to  be  understood  as  overruling  that  posi- 

Van  Heusen  v.   Radcliff,   17  N.  Y.  584;  tion,  but  if  that  question  comes  again  be- 

Cary  v.  AVhite,  7  Lans.  (N.  Y.)   1  ;  52  N.  fore  us,   it  will    be  open    to    argument, 

Y.  138 ;  Weaver  v.  Barden,  49  lb.  286  ;  whether  a  different  principle  should  be  ap- 

Padgett  V.  Lawrence,  10  Paige  (N.  Y.),  plied  to  conveyances  of  real  estate  from 

180;  Stalker  r.  M'Donald,  p  Hill  (N.  Y.),  that  which  all  the  members  of  the  court 

93 ;  Dickerson  v.  Tillinghast,  4  Paige  (N.  agree  should  be  applied  to  the  indorsement 

Y.),  215;  Coddington   v.  Bay,  20  Johns,  of  a  promissory  note." 

(N.  Y.),  637;  Westervelt  y.  Uaff,  2  Sandf.  ^  Spurlock  v.   Sullivan,   36    Tex.  511; 

(N.  Y.)  Ch.  98.  Pickett  v.  Barron,  29  Barb.  (N.  Y.)  505  ; 

The  same  rule  was  laid  down  iu  Illinois  Webster  v.  Van  Steenbergh,  46  Barb.  (N. 

in  the  case  of  Metropolitan  Bank  v.  God-  Y.)  211  ;  and  see  Lawrence  v.  Clark,  36 

frey,  23  111.  579.     In  later  cases,  however,  N.  Y.  128. 

it  has  been  held,  so  far  as  negotiable  paper  ^  Webster  v.  Van  Steenbergh,  46  Barb, 

is  concerned,  that  an  indorsee  taking  it  be-  (N.  Y.)  211 ;  Wood  v.  Chapin,  13  N.  Y. 

fore  maturity  as  payment  or  security  for  509. 

a  preexisting  debt  is  a  holder  for  value,  *  Aubuchon   v.   Bender,   44   Mo.    560 ; 

and  takes  it  free  from  latent  defences  on  Bishop  v.  Schneider,  46  Mo.  472. 

345 


§§  459,  460.]       REGISTRATION    AS    AFFECTING   PRIORITY. 

entitled  to  be  regarded  as  a  purcliaser,  and  to  be  protected  as 
such.i  But  the  weiglit  of  authority  is  very  decidedly  against  this 
position. 

459,  The  giving  of  further  time  for  the  payment  of  an  exist- 
ing debt,  b}^  a  valid  agreement,  for  any  period  however  short,  is 
a  valuable  consideration,  and  is  sufficient  to  support  a  mortgage 
as  a  purchase  for  a  valuable  consideration.  But  the  mere  taking 
of  collateral  security  on  time  is  not  by  itself,  and  in  the  absence 
of  any  agreement  beyond  it,  an  extension  of  the  time  of  payment 
of,  the  original  debt;  and  therefore  a  mortgage  taken  as  security 
in  such  way  is  not  a  purchase  for  value.^ 

460.  A  judgment  creditor  is  not  generally  a  purchaser 
within  the  recording  acts.  He  was  not  regarded  as  a  purchaser 
at  common  law.  In  a  case  in  Peere  Williams,  "  it  was  granted," 
said  the  reporter,  "  that  if  Lord  Winchelsea,  the  covenantor,  had 
made  a  mortgage  of  the  premises  for  a  valuable  consideration  and 
without  .notice,  such  mortgagee,  in  regard  that  he  might  have 
pleaded  his  mortgage,  and  would  have  been  as  a  purchaser  without 
notice,  should  have  held  place  against  the  intended  purchaser,  for 
then  the  money  would  have  been  lent  on  the  title  and  credit  of 
the  land,  and  would  have  attached  on  the  land ;  which  would  not 
be  so  in  the  case  of  a  judgment  creditor,  who,  for  ought  that  ap- 
pears, might  have  taken  out  execution  against  the  person  or  goods 
of  the  party  that  gave  the  judgment;  and  a  judgment  is  a  general 
security,  not  a  specific  lien  on  the  land."^  And  in  another  case 
given  by  the  same  reporter  it  was  said,  that  "  one  cannot  call  a 
judgment  creditor  a  purchaser,  nor  has  such  creditor  any  right  to 
the  land  ;  he  has  neither  ^ws  in  re  nor  ad  remy  ^  The  recording 
acts  do  not  change  the  common  law  in  this  respect.  They  have 
not  interposed  generally  to  protect  a  judgment  lien;  and  where 
they  have  not  it  stands,  as  at  common  law,  subject  to  the  prior 
conveyance.^     If  there  be  an  existing  mortgage  at  the  time  the 

1  Babcock  v.  Jordan,  24  Ind.  14,  and  supra.  See,  also,  cases  cited  in  the  last 
cases  cited.  case. 

2  Gary  v.  White,  52  N.  Y.  138,  revers-  3  Finch  v.  Winchelsea,  1  P.  Wms.  277. 
ing,  7  Lans.  (N.  Y.)  1  ;  Wood  v.  Bob-  4  Brace  v.  Dutchess  of  Marlborough,  2 
inson,  22  N.  Y.  564;   the  dicium  in  the  P.  Wms.  491. 

case  of  Pratt  v.  Coman,  37  N.  Y.  440,  to  ^  Cover  v.  Black,  1  Pa.  St.  493,  per 
the  contrary,  isdenied  in  Gary  v.  White,     Chief  Justice  Gibson ;  Rodgers  v.  Gibson, 

346 


NATURE   AND   APPLICATION    OF    REGISTRY   ACTS.         [§  461. 

judgment  is  rendered,  that  will  bind  only  the  equity  of  redemp- 
tion whether  the  mortgage  be  recorded  or  not,  or  whether  the 
judgment  creditor  had  or  had  not  actual  notice  of  the  mortgage 
when  he  obtained  the  judgment.^  An  attachment  of  land  upon 
the  debt  of  one  holding  the  record  title  does  not  avail  at  all 
against  the  equitable  owner  of  the  estate,  or  against  one  claiming 
under  a  mortgage  or  deed  not  recorded.^  There  is  no  appreciable 
distinction  between  an  attachment  and  a  levy  of  an  execution  or  a 
judgment  lien,  except  that  which  results  from  the  amount  of  ex- 
pense incurred  in  the  latter  proceedings,  and  such  expense  cannot 
be  regarded  as  placing  the  creditor  in  the  situation  of  a  bond  fide 
purchaser.^  Whether  the  lien  be  by  attachment  or  by  judgment 
it  is  a  lien  only  upon  the  real  estate,  or  the  interest  in  it  owned  by 
the  debtor,  not  upon  that  owned  by  another,  as  is  the  case  when 
the  debtor  has  conveyed  it  or  mortgaged  it,  although  the  deed  be 
unrecorded.  The  creditor  is  entitled  to  the  same  rights  as  the 
debtor  had,  and  no  more.^ 

461.  Priority  as  between  a  mortgage  and  judgment.  —  A 
mortgage  recorded  prior  to  an  entry  of  judgment  which  is  a  lien 
upon  the  property,  takes  precedence  of  the  judgment  lien.^"  And 
so  if  a  creditor  have  actual  notice  of  a  prior  unrecorded  mortgage 
at  the  time  of  obtaining  his  judgment  lien,^  or  before  the  debt 
was  contracted,'  he  will  hold  his  lien  subject  to  such  mortgage. 
A  mortgage  executed  and  recorded  after  a  judgment  is  entered 
against  the  mortgagor  is  of  course  subject  to  the  judgment  lien. 
A  mortgage  and  a  judgment  entered  of  record  on  the  same  day, 
the  record  not  showing  which  was  first  recorded,  are  payable  j?ro 
rata.^  Under  a  statute  which  provides  that  a  mortgage  recorded 
within  a  certain  time  after  its  date  shall  take  effect  as  between 
the  parties  from  its  date,  a  judgment  recovered  subsequently  to 

4Yeates  (Pa.),  Ill  ;  Heister  r.  Former,  2  284;    Dunwell  v.   Bidwell,   8   Minn.  34; 

Bin.  (Pa.)  40.  Wertz's  Appeal,  65  Pa.  St.  306. 

1  Knell  V.  Green  St.  Building  Ass'n,  34  c  Williams  v.  Tatnall,  29  111.  553  ; 
Md.  67.  Thomas  v.  Vanlieu,  28  Cal.  616;  and  see 

2  Hackctt  V.  Callcnder,  32  Vt.  97.  Cheesebrough  v.  Millard,  1  Johns.   (N.  Y.) 
8  Hart  V.  Farmers'  &  Mechanics'  Bank,     Ch.  409. 

33  Vt.  252.  "  Britton's  Appeal,  45  Pa.  St.  172. 

<  Norton  v.  Williams,  9  Iowa,  529.  ^  Hendrickson's     Appeal,   24    Pa.    St. 

^  Jackson  v.  Dubois,  4  Johns.    (N.  Y.)     363. 


216;  Scott  V.  McMurran,  7  Blackf.  (Ind.) 


347 


§§  462,  463.]       REGISTRATION   AS   AFFECTING   PRIORITY. 

the  date  of  a  mortgage,  and  before  the  recording  of  it,  binds  only 
the  equity  of  redemption  and  is  subject  to  the  mortgage  without 
regard  to  the  question  of  actual  notice,  if  the  mortgage  is  subse- 
quently recorded  within  the  time  prescribed  by  law.^ 

462.  Where  an  unrecorded  mortgage  is  preferred  to  a  judg- 
ment. —  Where  a  judgment  creditor  is  not  considered  a  purchaser 
within  the  recording  acts,  a  judgment  lien  or  attachment  is  not 
protected  by  them  ;  and  a  mortgage  being  valid  without  being 
recorded,  for  all  purposes  except  that  of  preserving  its  lien  against 
bond  fide  purchasers  and  mortgagees,  is  valid  against  a  judgment 
lien.2  In  such  case  it  makes  no  difference  that  the  mortgage  was 
given  to  secure  future  advances,  which  had  not  been  made  when 
the  judgment  was  rendered. ^ 

Generally,  knowledge  on  the  part  of  a  judgment  or  attaching 
creditor  of  an  unrecorded  mortgage  upon  the  debtor's  property 
affects  him  as  it  would  a  purchaser,  that  is,  the  notice  is  equiv- 
alent to  a  record  of  the  mortgage.'^  But  where  a  statute  pro- 
vides that  a  mortgage  shall  not  be  a  lien  upon  the  property  until 
it  shall  have  been  recorded,  then  the  doctrine  of  notice,  it  has  been 
held,  does  not  apply  to  a  creditor,  but  to  purchasers  only.^ 

463.  The  reverse  rule  held  in  several  states.  —  But  on  the 
other  hand  in  several  states  it  is  held  that  the  lien  of  a  judgment, 
or  a  levy  of  execution,  is  superior  to  an  unrecorded  mortgage,  or 
to  a  recorded  mortgage  which  is  defectively  executed,  in  the  ab- 
sence of  actual  notice  of  the  mortgage  on  the  part  of  the  judg- 

1  Knell  I'.  Green  St.  Building  Ass'n,  34  r.  McGlasson,  18  Iowa,  150;  Norton  v. 
Md.  67.  Williams,  9  Iowa,  529 ;  Patterson  v.  Lin- 

2  Burgh  V.  Francis,  1  Eq.  Gas.  Abr.  320,  der,  14  Iowa,  414 ;  Righter  v.  Forrester,  1 
pi.  1 ;  Finch  v.  Earl  of  Winchelsea,  1  P.  Bush  (Ky.),  278 ;  Morton  v.  Robards,  4 
Wms.   278;  Burn   v.  Burn,  3    Ves.   582;  Dana  (Ky.),  258. 

Jackson  v.  Dubois,  4  Johns.  (N.  Y.)  216  ;  3  Thomas  v.  Kelsey,  30  Barb.    (N.  Y.) 

Schmidt  v.  Hoyt,  1  Edw.  (N.  Y.)  Ch.  652  ;  268. 

Pixley  V.  Huggins,  15  Gal.   127;    Orth  v.  *  Priest  v.  Rice,  1  Pick.  (Mass.)  164. 

Jennings,  8  Blackf.  (lud.)  420;  Greenleaf  5  Hulings  v.    Guthrie,  4  Pa.  St.  123  ; 

V.  Edes,  2  Minn.   264  ;    Kelly  v.  Mills,  41  Jaques  v.  Weeks,  7  Watts  (Pa.),  261.  These 

Miss.  267  ;  First  Nl.  Bank  of  Tama  City  v.  cases  seem  to  be  overruled  in  Solms  v.  Mc- 

Hayzlett,   40   Iowa,    659  ;    Hoy   v.  Allen,  Gnllogh,  5  Pa.  St.  473 ;  but  the  authority 

27   Iowa,    206  ;    Churchill   v.  Morse,    23  of  the  latter  case  is  questioned  in  Uhler  v. 

Iowa,  229  ;    Welton  v.  Tizzard,   15   Iowa,  Hutchinson,  23  Pa.  St.  110. 
495  ;  Bell  v.  Evans,  10  Iowa,  353  ;  Evans 

348 


NATURE   AND   APPLICATION   OF  REGISTRY   ACTS.         [§  464. 

ment  creditor  in  the  one  case,  or  of  the  execution  purchaser  in 
the  other.i  Although  the  creditor  has  notice  of  the  mortgage,  a 
piirchaser  at  the  sale  upon  execution  is  not  affected  by  it,  and 
being  without  notice  himself,  he  acquires  a  title  superior  to  the 
unrecorded  mortgage.^  And  on  the  other  hand,  a  judgment 
creditor  having  gained  priority  over  an  unrecorded  mortgage,  a 
purchaser  at  the  execution  sale  obtains  the  same  priority,  notwith- 
standing he  has  notice  of  the  mortgage.^ 

In  Ohio,  inasmuch  as  the  statute  declares  that  mortgages  shall 
take  effect  only  from  the  time  they  are  left  for  record,  a  judg- 
ment recovered  after  the  date  of  a  mortgage,  and  before  it  is 
recorded,  takes  precedence  of  it.*  Yet,  in  this  state,  a  judgment 
creditor  is  not  a  purchaser,  nor  is  he  in  any  way  entitled  to  the 
privileges  of  that  position.'^ 

464.  Purchase  money  mortgage.  —  A  mortgage  given  at  the 
time  of  the  purchase  of  real  estate,  to  secure  the  payment  of  pur- 
chase money,  has  preference  over  all  judgments  and  other  debts 
of  the  mortgagor,  to  the  extent  of  the  land  purchased.  It  is  so 
provided  by  statute  in  several  states.^  A  purchase  money  mort- 
gage is  good  and  effectual  against  the  wife  of  the  mortgagor,  with- 
out her  joining  in  the  execution  of  it.  The  seisin  of  the  husband 
is  instantaneous  only  ;  and  it  is  a  well  settled  rule  that  in  such  case 
no  estate  or  interest  can  intervene."  This  rule  applies  even  where 
the  mortgage  is  made  to  a  third  person.^  Dower  attaches  as 
against  every  one  but  the  mortgagee  and  his  assigns.^ 

1  Van  Thorniley  v.  Peters,  26  Ohio  St.  Mississippi  :  Rev.  Code  of  1871,  p.  501. 
471;  Mayham  r.  Coombs,  14  Ohio,  428;  Maryland  :  Pub.  Gen.  Laws,  1860,  art. 
White  V.  Denman,  16   Ohio,  59;  1   Ohio     64,  §  3. 

St.  110  ;  Fosdick  v.  Barr,  3  lb.  471  ;  Hoi-  New  Jersey  :  Nixon's  Dig.  p.  147,  §  20. 

liday   v.  Franklin    Bank,   16    Ohio,  533;  New  York  :  Code  of  Remedial  Justice, 

Hulings  V.  Guthrie,  4  Pa.  St.  123;  Hib-  1876,  §  1254. 

bard  v.  Bovicr,  1  Grant  (Pa.)  Cas.  266;  Delaware:  Rev.  Stat.  269. 

Uhler  V.  Hutchinson,  23  Pa.  St.  110;  Bar-  "^  North  Carolina  :  Battle's    Revisal, 

ker  r.  Bull,  37  Ala.  354  ;  Moore  i;.  Watson,  1873,   c.   35,   §   30;   Birnie    v.  Main,   29 

1  Root  (Conn.), 388;  Reichertr.  M'Clure,  Ark.  591;    Stow  v.   TifTt,  15  Johns.  (N 

23  111.  516.  Y.)  458  ;  Mills  r.  Van  Voorhies,  20  N.  Y. 

2  Miles  V.  King,  5  S.  C.  146.  412. 

8  Smith  V.  Jordan,  25  Ga.  687.  **  Clark  i'.  Monroe,  14  Mass.  351  ;  Mc- 

*  Mayham  r.  Coombs,  14  Ohio,  428.  Gowan  v.   Smith,  44  Barb.  (N.  Y.)  232; 

5  Tousley  v.  Tousley,  5  Ohio  St.  78.  Kiule  v.  Van  Dyck,  1  Sandf.  (N.  Y.)  Ch. 

6  Indiana  :  G.  &  H.  Stat.  vol.   2d,  p.     76. 

356.  9  Young  v.  Tarbell,  37  Me.  509. 

Kansas  :  Dassler's  Stat.  1876,  c.  68,  §  4. 

349 


§  465.]  REGISTRATION   AS    AFFECTING    PRIORITY. 

465.  Priority  of  a  purchase  money  mortgage.  —  A  provision 
of  statute,  that  a  mortgage  for  piu'cbase  money  shall  be  preferred 
to  any  previous  judgment  which  may  have  been  obtained  against 
the  purchaser,  applies  only  to  a  mortgage  made  by  the  purchaser 
to  the  vendor,  and  not  to  a  mortgage  made  to  a  third  person  to 
secure  the  payment  of  money  which  was  applied  by  the  purchaser 
to  the  payment  of  the  purchase  money  of  the  land.  The  terra 
purchase  money  does  not  include  money  that  may  be  borrowed  to 
complete  a  purchase,  but  that  which  is  stipulated  to  be  paid  by 
the  purchaser  to  the  vendor.  It  is  only  between  them  that  it  is 
purchase  money.  As  between  the  purchaser  and  a  third  party,  it 
is  simply  borrowed  money.  To  give  this  provision  any  other  con- 
struction would  be  to  assign  and  enlarge  the  vendor's  lien  without 
limit.i 

The  mortgage  for  purchase  money,  to  be  entitled  to  preference, 
must  be  executed  simultaneously  with  the  deed  of  conveyance 
from  the  vendor.  If  an  interval  of  time  is  left  between  the  two 
transactions,  during  which  the  interest  of  the  purchaser  is  liable 
to  be  seized  on  execution  upon  the  judgment,  this  preference  is 
lost,  and  the  judgment  is  entitled  to  priority .^  If  the  instruments 
are  delivered  at  the  same  time,  it  does  not  matter  that  they  were 
executed  on  different  days,  because  they  take  effect  only  from 
the  delivery.^ 

The  provision  that  a  mortgage  from  a  purchaser  to  a  vendor, 
delivered  simultaneously  with  the  deed,  to  secure  the  purchase 
money,  shall  be  preferred  to  a  previous  judgment  against  the  ven- 
dee, does  not  imply  that  in  every  other  case  such  judgment  shall 
have  preference.  A  mortgage  from  a  lessee  to  his  lessor,  deliv- 
ered at  the  same  time  with  the  lease,  to  secure  future  advances, 
is  within  this  provision.* 

The  effect  of  a  mortgage  to  secure  purchase  money,  executed 
simultaneously  with  the  deed  to  the  vendee,  is,  that  the  vendee 

1  Heuisler  v.    Nickum,   38    Md.    270;  2  Aheru  i?.  White,  39  Md.  409;  Heuis- 

Aldcrson  v.  Ames,  6  Md.  56 ;  Stansell  v.  lev  v.  Nickum,  38  Md.  270  ;  Foster's  App. 

Roberts,  13  Ohio,  148.     In   Clabaiigh  v.  3  Pa.  St.  79. 

Byerly,  7   Gill  (Md.),  354,  it  was  decided  3  Cake's  App.  23  Pa.    St.   186;    May- 

that  a  junior  mortgage  was  entitled  to  no  hurry  v.  Brieu,    15  Pet.   21  ;  Banning  v. 

preference  over  a  prior  one  by  showing  Edes,  6  Minn.  402. 

that  the  money  received  upon  it  was  ap-  *  Ahern  v.  White,  39  Md.  409. 
plied  in  payment  of  judgments  which  had 
priority. 

350 


NATURE   AND   APPLICATION   OF   REGISTRY   ACTS.         [§  466. 

has  only  an  instantaneous  seisin,  and  the  leoal  title  remains  with 
the  vendor,  who  becomes  the  mortgagee  of  the  land.^ 

A  reservation  in  a  conveyance  of  an  annual  rent,  with  a  con- 
dition that  the  grantor  may  enter  and  take  possession  in  case  of 
non-payment,  is  in  effect  a  conveyance  and  mortgage  back  for 
the  purchase  money,  and  is  superior  to  any  other  incumbrance 
which  the  grantee  can  create.^ 

466.  But  without  the  aid  of  any  statute  a  purchase  money 
mortgage  executed  simultaneously  with  the  deed  of  purchase  ex- 
cludes any  claim  or  lien  arising  through  the  mortgagor.  "  It  is 
a  principle  of  law,"  says  Chief  Justice  Caton,  of  Illinois,^  "  too 
familiar  to  justify  a  reference  to  the  authorities,  that  a  mortgage 
given  for  the  purchase  money  of  land,  and  executed  at  the  same 
time  the  deed  is  executed  to  the  mortgagor,  takes  precedence  of  a 
judgment  against  the  mortgagor.  The  execution  of  the  deed  and 
mortgage  being  simultaneous  acts,  the  title  to  the  land  does  not 
for  a  single  moment  vest  in  the  purchaser,  but  merely  passes 
through  his  hands  and  vests  in  the  mortgagee,  without  stopping  at 
all  in  the  purchaser,  and  during  this  instantaneous  passage  the 
judgment  lien  cannot  attach  to  the  title.  This  is  the  reason  as- 
signed by  the  books  why  the  mortgage  takes  precedence  of  the 
judgment,  rather  than  any  supposed  equit}^  which  the  vendor 
might  be  supposed  to  have  for  the  purchase  money." 

A  change  in  the  form  of  the  security  for  the  purchase  money, 
as  from  a  mortgage  to  a  deed  of  trust,  will  not  change  the  char- 
acter of  the  debt.  The  consideration  continues  to  be  purchase 
mone3^^  The  same  rule  applies  in  case  the  mortgage  is  to  another 
than  the  vendor,  who  actually  advances  the  means  to  pay  the  pur- 
chase money  .^ 

It  must  appear,  however,  that  the  deed  and  mortgage  consti- 
tuted but  one  transaction. **  The  "  seisin  of  the  purchaser  being 
merely  a  transitory  one,  no  lien  can  intervene,  and  therefore  the 
same  rule  applies  to  the  exclusion  of  any  intervening  lieii,  as  for 

1  Baker  v.  Clepper,  26  Tex.  629.  *  Curtis  v.  Root,  supra ;  Austin  v.  Un- 

2  Stephenson  v.  Haines,  16  Ohio  St.  478.  derwood,  .37  111.  438. 

3  Curtis  V.  Root,  20  111.  .53  ;  and  see  '^  Curtis  v.  Root,  supra ;  Bcebe  v.  Aus- 
Fitts  V.  Davis,  42  111.  391;  Banning  v.  tin,  15  Johns.  (N.  Y.)  477  ;  Haywood  v. 
Edcs,  6  Minn.  402;  Bolles  v.  Carli,  12  Nooney,  3  Barb.  (N.  Y"".)  643;  Adams  v. 
Minn.  113.  Hill,  9  Fost.  (N.  H.)  202. 

6  Grant  v.  Dodge,  43  Me.  489. 
851 


§  467.]  EEGISTRATION   AS   AFFECTING    PRIORITY. 

instance  a  lien  for  labor  and  materials  furnished  the  purchaser, 
who  has  entered  before  the  execution  of  the  deed  and  mortgage, 
which  are  afterwards  delivered  simultaneously  ;  ^  or  an  agreement 
made  in  relation  to  the  premises  by  the  purchaser  before  the  pur- 
chase ;  ^  or  right  of  homestead.^ 

A  suit  to  foreclose  a  mortgage,  given  to  secure  the  purchase 
money  of  land,  is  not  a  suit  for  the  enforcement  of  a  vendor's  lien. 
Neither  the  husband  nor  wife  can  set  up  a  homestead  right  against 
such  a  mortgage  given  contemporaneously  with  the  deed  of  pur- 
chase.* A  jnortgage  for  purchase  money  has  priority  over  a 
mechanic's  lien  for  a  building  erected  by  the  purchaser  before  he 
received  a  deed,  and  while  he  held  a  bond  for  a  deed,  and  although 
the  lien  was  filed  before  the  makino;  of  the  deed.^ 

467.  The  mortgage  valid  against  the  mortgagor  and  his 
heirs  without  registry,  —  Of  course  the  recording  of  a  mortgage 
is  not  necessary  as  against  the  mortgagor ;  ^  and  even  in  those 
states  where  it  is  provided  by  statute  that  a  mortgage  shall  be 
recorded  within  a  stipulated  time,  it  is  still  valid  between  the  par- 
ties without  registration.  The  mortgagee  by  an  unrecorded  mort- 
gage will  be  protected  by  a  court  of  equity,  so  far  as  this  can  be 
done  without  infringing  upon  the  rights  of  subsequent  purchasers, 
or  third  persons  who  have  in  the  mean  time  acquired  liens  of 
record  upon  the  property."  It  is  for  their  protection,  however, 
that  a  record  is  provided  for.     As  between  the  parties  themselves, 

1  Lamb  v.  Cannon,  38  N.  J.  L.  362  ;  ■*  Hopper  v.  Parkinson,  5  Nev.  233. 
Strong  V.  Van  Deusen,  23  N.  J.  Eq.  369  ;  ""  Virgin  v.  Brubaker,  4  Nev.  31. 
Macintosh  v.  Thurston,  25  N.  J.  242 ;  Guy  '^  Wood  v.  Chapin,  13  N.  Y.  509  ;  St. 
V.  Carriere,  5  Cal.  511.  Marks  F.  Ins.  Co.  v.  Harris,  13  How   (N. 

2  BoUes  V.  Carli,  12  Minn.  113  ;  Morris  Y.)  Pr.  95  ;  Jackson  v.  Colden,  4  Cow.  (N. 
V.  Pate,  31  Mo.  315.  1^)  266 ;  Jackson  v.  West,  10  Johns.  (N. 

3  New  England  Jewelry  Co.  v.  Merriam,  Y.)  466  ;  Fosdick  v.  Barr,  3  Ohio  St.  471  ; 
2  Allen  (Mass.),  391  ;  Carr  v.  Caldwell,  10  Sidle  v  Maxwell,  4  Ohio  St.  236  ;  Levinz 
Cal.  380 ;  Aniphlett  v.  Hibbard,  29  Mich.  v.  Will,  1  Dall.  430  ;  Leggett  v.  Bullock, 
298;  Nicholas  v.  Overacker,  16  Ivans.  54;  Busb.  (N.  C.)  L  283  ;  Seaver  v.  Spink,  65 
Magee  v.  Magee,  51  111.  500 ;  Austin  v.  111.  441 ;  Howard  Mut.  Loan  &  Fund 
Underwood,  37  111.  438  ;  Allen  v.  Hawley,  Ass'n,  v.  Mclutyre,  3  Allen  (Mass.),  571 ; 
66  111.  168;  Lane  v.  Collier,  46  Ga.  580.  Perdue  v.  Akiridge,  19  Ind.  290;  Carle- 
See  Pratt  V,  Topeka  Bank,  12  Kans.  570,  ton  v.  Byington,  18  Iowa,  482 ;  Moore  v. 
for  a  case  where  a  mortgage  given  upon  Thomas,  1  Oreg.  201. 

a   homestead    by  husband   and    wife   was        "  Wynn  v.  Carter,  20  Wis.  107. 
partly  paid,  and  a  new  mortgage  for  the 
balance  given  by  the  husband  alone. 

352 


NATURE   AND    APPLICATION   OF   REGISTRY    ACTS.       [§§  468,  469. 

there  is  no  occasion  for  a  public  record  to  give  notice.  Although 
it  has  sometimes  been  said  that  the  delivery  of  a  mortgage  for 
record  is  a  part  of  the  execution  of  the  instrument,  this  is  not  true 
except  so  far  as  the  expression  has  reference  to  its  effect  upon 
those  who  are  not  parties  to  it.^  Even  the  destruction  of  the 
mortgage  before  the  recording  of  it,  whether  by  accident  or  by 
the  wrongful  act  of  a  third  person,  does  not  annihilate  the  lien 
as  between  the  parties  and  all  others  claiming  with  notice.^ 

A  mortgage  without  acknowledgment  or  record  is  good .  against 
the  mortgagor,  and  his  heirs  or  devisees,  and  against  others  who 
have  actual  notice  of  its  existence  before  they  acquired  title. ^  If 
the  title  is  not  dependent  upon  the  time  of  recording,  and  the 
record  is  merely  to  authorize  its  introduction  as  evidence,  it  may 
be  recorded  after  action  brought  to  enforce  it,  and  at  any  time 
before  trial.  This  rule  is  equally  applicable  to  the  case  of  an  as- 
signment of  a  mortgage,  which  may  be  recorded  after  the  assignee 
has  brought  an  action  to  foreclose,  and  at  any  time  before  trial 
and  judgment.^ 

468.  The  assignee  of  a  bankrupt  has  no  greater  rights  in  re- 
spect to  unrecorded  deeds  made  by  the  debtor  than  he  himself 
would  have.  He  therefore  takes  the  bankrupt's  estate,  subject  to 
any  conveyances  he  has  made,  although  they  remain  unrecorded. 
But  one  who  purchases  of  the  assignee,  without  notice  of  an  un- 
recorded mortgage,  takes  the  property  unincumbered  by  it.^ 

469.  Equitable  mortgages  are  generally  held  to  be  within 
the  recording  acts  as  much  as  are  legal  mortgages.^  At  first  a 
different  interpretation  was  put  upon  the  acts,  and  a  mortgage 
of  an  equity  or  of  an  equitable  estate  was  not  constructive  notice 
when  registered.'''  But  at  an  early  day  in  this  country  it  was 
established,  either  judicially  or  by  statute,  that  all  rights,  incum- 

1  Sicilc  V.  Maxwell,  4  Ohio  St.  236;  lim-        &  Hodgen  v.  Guttery,  58  111.  431. 

iting  Holliday  v.  Franklin   Bank  of   Co-  ^  Hunt  y.  Johnson,  19  N.  Y.  279  ;  Park- 

lumbiis,  16  Ohio,  533.  ist  v.  Alexander,  1  Johns.  (N.  Y.)  Ch.  394 ; 

2  Sloan  I'.  Holcomb,  29  Mich.  153.  Crane  v.  Turner,   7    Hun  (N.    Y.),   357; 
8  Johnston  v.  Cauby,  29  Md.  211 ;  Mar-  Boyce  v.  Shiver,  3  S.  C.  515. 

shall  V.  Fisk,  6  Mass.  24;  Dole  v.  Thur-        ^  Doswell  v.  Buchanan,  3  Leigh  (Va.), 
low,  12  Met.  (Mass.)  162.  377. 

*  Wolcott    V.    Winchester,     15     Gray 
(Mass.),  461. 

VOL.1.  23  353 


§§  470,  471.]      REGISTRATION   AS   AFFECTING   PRIORITY. 

brances,  or  conveyances  touching  or  in  any  way  concerning  land 
should  appear  upon  the  public  records,  and  that  conveyances  of 
equitable  interests  as  well  as  legal  were  within  the  registry  acts. 
A  mortgage,  therefore,  of  such  an  interest  if  first  recorded  is  pre- 
ferred to  a  mortgage  of  the  legal  estate.^ 

A  mortgage  of  an  equitable  interest  under  a  contract  of  pur- 
chase, although  no  legal  estate  passes  by  it,  is  within  the  opera- 
tion of  the  registration  acts,  and  should  be  recorded  to  entitle  it 
to  priority  over  a  subsequent  mortgage  of  the  same  interest ;  and 
an  assignment  of  such  a  contract  as  security  for  a  debt  is  regarded 
as  a  mortgage.^ 

Generally  the  record  of  an  agreement  constituting  an  equitable 
mortgage  is  notice  to  a  subsequent  purchaser  of  the  legal  estate.^ 
One  in  possession  of  lands  under  a  parol  contract  to  purchase 
them  may  mortgage  his  interest  in  them,  and  the  record  of  the 
mortgage  will  be  notice  to  subsequent  purchasers  and  incum- 
brancers.^ But  on  the  other  hand  it  is  held  that  the  mortgage  of 
an  equitable  title  is  not  constructive  notice  to  purchasers  of  the 
land  from  a  holder  of  the  legal  title.^ 

470.  An  equitable  mortgage  for  a  precedent  debt  has  no 
equity  superior  to  that  of  a  valid  subsequent  judgment  at  law. 
Between  such  contestants  the  first  perfected  legal  title  should  pre- 
vail. The  rule  is  otherwise  with  regard  to  hoiid  fide  purchasers 
or  equitable  mortgagees,  where  the  consideration  of  the  mortgage 
is  paid  at  the  time  it  is  given.  Equity  in  the  latter  case  regards 
the  equitable  mortgagee  as  a  bond  fide  purchaser.^ 

471.  Mortgages  of  leasehold  estates.  —  The  recording  acts 
apply  not  only  to  mortgages  of  freehold  estates,  but  as  well  to 
those  of  leasehold  estates  of  such  duration  of  term  as  to  come 
within  the  recording  acts  of  the  several  states.^     Such  mortgages 

1  U.  S.  Ins.  Co.  V.  Shriver,  3  Md.  Ch.  *  Crane  v.  Turner,  7  Hun  (N.  Y.),  357. 
381  ;  and  see  White  &  Tudor's  Lead.  Cas.  ^  Halsteads  v.  Bank  of  Ky.  4  J.  J. 
in  Eq.  4th  Am.  ed.  vol.  2,  part  I,  p.  204,     Marsh.  (Ky.)  554. 

where  the  cases  are  collected.  ^  Wheeler  v.  Kirtlaud,  24  N.  J.  Eq.  552. 

2  Bank  of  Greensboro  v.  Clapp,  76  N.  ^  Decker  v.  Clarke,  26  N.  J.  Eq.  163; 
C.  482.  Berry  v.  Mutual  Ins.  Co.  2  Johns.  (N.  Y.) 

3  Parkist  v.  Alexander,  I  Johns.  (N.  Y.)  Ch.  603  ;  Johnson  v.  Stagg,  2  Johns.  (N. 
Ch.  394  ;  Hunt  v.  Johnson,  19  N.  Y.  279;  Y.)  510,  523  ;  Breese  v.  Bange,  2  E.  D. 
General  Ins.  Co.  v.  United  States  Ins.  Co.  Smith  (N.  Y.),  474. 

10  Md.  517 ;  Jarvis  v.  Dutcher,  16  Wis.  307. 
354 


NATURE   AND    APPLICATION   OF   REGISTRY    ACTS.  [§  472. 

are  not  only  as  a  general  rule  within  the  terms  of  these  acts,  but 
therefore  within  the  reason  and  spirit  of  them,  inasmuch  as  they 
are  equally  within  the  mischief  for  which  they  provide  a  remedy ; 
and  they  do  not  come  under  the  provisions  relating  to  the  record- 
ing of  mortgages  of  personal  property,  as  these  have  reference 
only  to  chattels  personal.^ 


472.  The  registration  laws  apply  to  assignments.  —  The 
registration  laws  and  the  doctrines  of  priority  by  record  generally 
extend  to  assignments  of  mortgages  as  well.^  The  assignment  is 
invalid  against  subsequent  purchasers  without  notice  unless  it  is 
recorded.  Consequently  if  a  mortgagee  transfers  the  note  secured 
by  the  mortgage,  or  makes  a  formal  assignment  of  the  mortgage 
which  is  not  recorded,  and  afterwards  enters  a  satisfaction  of  the 
mortgage  upon  the  record,  the  mortgage  ceases  to  be  a  lien,  as 
against  one  who  purchases  the  property  in  good  faith  and  without 
notice.'^     In  like  manner  an  assignee  of  the  mortgage  is  not  bound 


1  Decker  v.  Clarke,  supra. 

2  Belden  v.  Meeker,  47  N.  Y.  307  ;  S. 
C.  2  Lans.  (N.  Y.)  470,  overruling  Hoyt 
V.  Hovt,  8  Bosw.  (N.  Y.)  511  ;  Vander- 
kemp  V.  Shelton,  11  Paige  (N.  Y.),  28; 
S.  C,  Clarke  (N.  Y.),  Ch.  321  ;  Fort  v. 
Burch,  5  Den.  (N.  Y.)  187  ;  St.  John  v. 
Spalding,  1  Thomp.  &  C.  (N.  Y.)  483  ; 
James  v.  Johnson,  6  Johns.  (N.  Y.)  Ch. 
417  ;  James  v.  Morey,  2  Cow.  (N.  Y.)  246  ; 
Campbell  v.  Vedder,  1  Abb.  (N.  Y.)  App. 
Dec.  295  ;  Bowling  v.  Cook,  39  Iowa,  200 ; 
Bank  of  the  State  of  Ind.  v.  Anderson,  14 
lb.  544;  McClure  r.  Burris,  16  lb.  591  ; 
Cornog  V.  Fuller,  30  lb.  212. 

In  Indiana,  the  statute  not  providing 
for  the  record  of  assignments,  it  is  held 
the  record  of  them  is  not  notice.  Ilassel- 
raan  v.  McKernan,  50  Ind.  441. 

In  I'knnsylvania  the  record  of  an  as- 
signment of  a  mortgage  is  notice  to  sub- 
sequent assignees  of  the  mortgage.  Neide 
V.  Pennyi)acker,  9  Phila.  (Pa.)  86  ;  and  to 
subseipient  purchasers  and  mortgagees  as 
well.  Leech  v.  Bonsall,  lb.  204.  These 
decisions  are  based  on  the  Act  of  April  9, 
1849,  §  14.  So  far  as  the  general  record- 
ing act  of  1715  is  concerned,  "though 
there   has    been    no  express  decision  that 


under  it  an  assignment  of  a  mortgage 
may  be  recorded,  so  as  to  be  notice  to  sub- 
sequent purchasers;  yet,  taking  the  latest 
expression  of  the  supreme  court  on  the 
subject,  we  might  so  decide  without  disre- 
garding any  binding  authority,  or  any 
clearly  indicated  opinion  of  that  court." 
Per  Mr.  Justice  Mitchell  in  Neide  v.  Pen- 
nypacker,  supi-a ;  citing  Philips  v.  Bank 
of  Lewiston,  18  Pa.  St.  401.  In  the  later 
case  of  Pepper's  Appeal,  77  Pa.  St.  373, 
it  was  distinctly  held  that  the  recording  of 
an  assignment  is  notice  to  a  subsecjuent 
assignee  under  the  above  statute.  Mr. 
Justice  Mercur,  delivering  the  opinion  of 
the  court,  said  it  was  alleged  on  the  argu- 
ment that  it  is  not  customary  in  Philadel- 
phia to  search  the  records  for  assignments 
of  mortgages.  Be  that  as  it  may,  if  any 
custom  exists  not  in  harmony  with  the 
act,  it  must  give  way.  Mains  usus  abo- 
lendus  est. 

In  Maryland  provision  was  made  for 
recording  assignments  of  mortgages  by 
Act  1868,  c.  373  ;  but  this  does  not  affect 
an  equitable  assignment.  Byles  v.  Tome, 
39  Md.  461. 

2  Bowling  t'.  Cook,   supra ;  Henderson 
V.  Pilgrim,  22  Tex.  464. 
355 


§  473.]  REGISTRATION    AS   AFFECTING   PRIORITY. 

by  an  unrecorded  agreement  executed  between  the  parties  to  the 
mortgage,  whereby  the  mortgagee  was  bound  to  release  a  portion 
of  the  premises,  upon  receiving  a  certain  sum  in  payment.^  The 
doctrine  that  the  assignee  of  a  mortgage  takes  it  subject  to  all 
equities  existing  between  the  mortgagor  or  his  grantees  and  the 
mortgagee,  cannot  be  applied  to  those  instruments  which  are 
properly  designated  in  the  recording  acts  as  conveyances,  which 
both  a  release  of  a  mortgage  and  an  agreement  for  such  release 
would  be,  without  nullifying  the  acts  to  that  extent,  and  with- 
holding the  protection  they  were  designed  to  confer  upon  pur- 
chasers.^ 

But  the  record  of  an  assignment  of  a  mortgage  is  not  construc- 
tive notice  of  it  to  the  mortgagor  so  as  to  make  invalid  a  pay- 
ment made  by  him  to  the  mortgagee.^  It  is  desirable,  for  this 
reason,  tbat  personal  notice  should  be  given  him  of  the  assign- 
ment, though  the  assignee's  title  is  complete  without  notice  to 
the  owner  of  the  equity  of  redemption.^ 

It  has  been  held  that  a  power  of  attorney  to  assign  a  mortgage,^ 
or  one  to  collect  a  mortgage  and  discharge  it,®  are  not  within  the 
recording  acts,  and  therefore  a  record  of  them  is  not  notice. 

473.  Statutory  provisions  as  to  the  record  of  assignnients. 
It  is  provided  by  statute  in  several  states  that  the  recording  of 
an  assignment  of  a  mortgage  shall  not,  in  itself,  be  deemed  notice 
of  such  assignment  to  the  mortgagor,  his  heirs  or  personal  repre- 
sentatives, so  as  to  invalidate  any  payment  made  by  them  to  the 
mortgagee.''     In  New  Jersey,  on  the  other  hand,  the  inference  to 

1  Warner  v.  Winslow,  1  Sandf.  (N.  Y.)         ^  California:  Civ.  Code,  1872,  §  293; 
Ch.  430  ;  St.  John  v.  Spalding,  1  Tiiomp.     Acts  1874,  p.  261. 

&  C.  (N.  Y.)  483.  Indiana  :  G.  &  H.  Stat.  vol.  2,  p.  356. 

2  St.  John  y.  Spalding,  1  Thomp.  &  C.        Kansas:  Dassler's  Stat.    1876,  c.  68, 
(N.  Y.)  483.  §  3. 

8  Ely  V.  Scofield,  35  Barb.  (N.  Y.)  330  ;  Michigan  :   Compiled   Laws,  1871,  p. 

N.  Y.  Life  Ins.  &  Trust  Co.  v.  Smith,   2  1347. 

Barb.  (N.  Y.)    Ch.   82.     So   provided    by  Minnesota  :  Rev.  Stat.  1866,  p.  331. 

statute  in  Wisconsin,  Rev.  Stat.  1871,   p.  Nebraska:   Gen.  Stat.  1873,  c.  61,  § 

1149.  .39. 

*  Jones  V.  Gibbons,  9  Ves.  410;  Bar-  New  York:  Fay's  Dig.  of  Laws,  1874, 

nett,  Exp.  I3e  G.  194.  vol.  1,  p.  585. 

''  Williams  v.  Birbeck,  Hoffm.  (N.  Y.)  Oregon  :  Gen.  Laws,  1872,  p.  519. 

359.  Wisconsin:  Rev.  Stat.  1871,  p.  1149. 

6  Jackson  v.  Richards,  6  Cow.  (N.  Y.)  Wyoming  Territory:  Comp'd  Laws, 

617.  1876,  c.  3,  §  17. 
356 


NATURE   AND   APPLICATION    OF   REGISTRY   ACTS.  [§  474. 

be  drawn  from  the  statute  in  regard  to  the  recording  of  assign- 
ments is  that  this  record  is  notice  to  the  owner  of  the  equity  of 
redemption ;  for  it  is  provided  that  if  the  assignment  be  not 
recorded,  any  payments  made  in  good  faith  and  without  actual 
notice  of  the  assignment,  and  any  release  of  the  premises  to  a 
person  not  having  actual  notice  of  the  assignment,  are  as  valid 
as  if  the  mortgage  had  not  been  assigned. ^ 

It  is  provided,  too,  that  the  record  of  an  assignment  of  a  mort- 
gage is  notice  from  the  time  it  is  left  for  record  to  all  persons  con- 
cerned ;  and  an  assignee  by  an  assignment  not  recorded  is  bound 
by  any  sale  in  a  foreclosure  suit,  instituted  by  the  holder  of  the 
recorded  assignment. 

In  Dakota  Territory  an  assignment  of  a  mortgage  may  be  re- 
corded in  like  manner  with  a  mortgage,  and  such  record  operates 
as  notice  to  all  persons  subsequently  deriving  title  to  the  mortgage 
from  the  assignor.^ 

The  object  of  the  statutory  provisions  that  the  record  of  an 
assignment  shall  not  be  deemed  in  itself  notice  to  the  mortgagor, 
his  heirs,  or  personal  representatives,  of  such  assignment,  so  as  to 
invalidate  any  payment  made  by  him  or  them  to  the  mortgagee, 
was  to  save  the  necessity  of  examining  the  record  every  time  a 
payment  is  made.  It  is  argued,  therefore,  that  for  all  other  pur- 
poses, the  record  of  the  assignment  is  notice  even  to  the  mort- 
gagor. Accordingly  it  has  been  held  under  these  provisions  that 
the  record  of  an  assignment  of  a  mortgage  is  constructive  notice 
as  against  a  grantee  of  the  mortgagor,  that  the  mortgagee  can  no 
longer  deal  with  the  mortgage  title  ;  and  a  subsequent  discharge 
or  release  of  the  mortgage  executed  by  the  mortgagee  is  invalid.^ 
If  the  release  is  obtained  by  the  mortgagor  himself  without  the 
payment  of  any  sum  of  money  upon  the  mortgage  debt,  the  stat- 
ute does  not  protect  him  against  the  effect  of  an  assignment  al- 
ready recorded.^ 

474.  The  consequences  of  omitting  to  record  an  assign- 
ment. —  As  against  subsequent  purchasers  of  the  premises,  or  the 
holders  of  subsequent  mortgages  upon  them,  the  record  of  a  prior 
mortgage  is  sufficient  notice  of  its  existence  without  the  record  of 

1  Nixon's  Dig.  1868,  p.  612.  3  Belden  v.  Meeker,  47   N.   Y.  307;  2 

2  Civil  Code,  1871,  §  162'J.  Lans.  (N.  Y.)  470. 

*  Belden  v.  Meeker,  supra. 

357 


§  474.]  REGISTRATION   AS   AFFECTING   PRIORITY. 

an  assignment  of  the  mortgage  to  one  who  has  purchased  it.  The 
failure  to  record  the  assignment  does  not  blot  out  the  record  of 
the  mortgage  itself.^  If  the  premises  are  conveyed  to  the  mort- 
gagee after  he  has  assigned  the  mortgage,  there  is  no  merger  of 
the  mortgage  title.^  It  makes  no  difference  that  the  assignment 
is  not  recorded.  If  the  mortgagee  in  this  condition  of  the  title 
then  conveys  the  estate  to  one  who  purchases  without  knowledge 
of  the  assignment  of  the  mortgage,  the  question  arises  whether 
the  assignee,  having  omitted  to  record  his  assignment,  thus  leav- 
ing, so  far  as  the  record  shows,  a  complete  title  in  the  mortgagee, 
can  be  protected  in  his  title  as  against  the  purchaser  from  the 
mortgagee  ?  ^ 

Of  course  the  purchaser  is  charged  with  constructive  notice  of 
the  existence  of  a  mortgage,  and  of  the  continuance  of  its  lien, 
by  its  record.  Having  this  information  he  is  chargeable  in  law 
with  the  further  notice,  that  the  mortgage  is  a  lien  in  the  hands  of 
any  person  to  whom  it  may  have  been  legally  transferred,  and  that 
the  record  of  such  transfer  was  not  necessary  to  its  validity,  nor 
as  a  protection  against  a  purchaser  of  the  property  mortgaged,  or 
any  other  person  than  a  subsequent  purchaser  in  good  faith  of  the 
mortgage  itself,  or  the  bond  or  debt  secured  by  it ;  but  rather  that 
one  purchasing  the  premises  would  take  them  subject  to  the  lien 
of  the  mortgage  irrespective  of  the  ownership  of  it,  unless  the 
mortgagee  was  the  owner.  That  knowledge  and  notice  made  it 
his  duty,  in  the  exercise  of  proper  diligence,  to  inquire  whether 
his  vendor,  the  mortgagee,  was  still  the  owner  and  holder  of  the 
mortgage,  and  his  omission  to  make  that  inquiry  deprives  him  of 
the  protection  of  a  bond  fide  purchaser.* 

The  rule  that  a  mortgagor  is  entitled  to  deal  with  the  mort- 
gagee as  the  holder  of  the  mortgage,  until  he  has  actual  notice  of 
an  assignment,  has  no  application  when  the  mortgage  is  given  to 
secure  a  negotiable  note,  and  this  is  transferred  before  it  is  due.^ 

^  Campbell  v.  Vedder,  3  Keycs  (N.  Y.),  B.,  and  then  by  a  full  covenant  deed  con- 

174;  1  Abb.  (N.  Y.)  App.  Dec.  295.  veys  the  land,  and  all  his  estate  and  inter- 

2  Campbell  v.  Vedder,  supra ;  Purdy  v.  est  in  the  land,  to  D." 

Huntington,  42  N.  Y.  334.  *  Purdy  v.  Huntington,  42  N.  Y.  334 ; 

*  This  then  is  the  case  :  "  A.  sells  and  overruling  S.   C.  46   Barb.  389  ;  and  see 

conveys  land  to  B.     B.  gives  back  a  bond  Van  Keuren  v.  Corkins,  6  Thomp.  &  C. 

and   mortgage   for   the  purchase  money.  (N.  Y.)  355  ;  4  Hun,  129  ;  Gillig !'.  Maass, 

A.  sells  and  assigns  the  bond  and  mort-  28   N.    Y.    191 ;  Warren   v.    Winslow,    1 

gage  to  C,  and  afterwards  receives  a  con-  Sandf.  (N.  Y.)  Ch.  430. 

veyance  of  the  equity  of  redemption  from  ^  Jones  v.  Smith,  22  Mich.  360. 

358 


NATURE   AND   APPLICATION   OF   REGISTRY   ACTS.       [§§  475,  476. 

475.  An  assignee  of  a  mortgage  is  a  purchaser,  and  is  en- 
titled to  the  protection  of  the  recording  acts  as  much  as  a  pur- 
chaser of  the  equity  of  redemption.  If  he  purchases  in  good  faith 
and  for  a  valuable  consideration,  he  is  not  chargeable  with  any 
notice  his  assignor  had  of  prior  incumbrances  upon  the  property. 
He  is  chargeable  only  with  constructive  notice,  such  as  is  afforded 
by  record,  or  by  open  and  adverse  possession  of  the  premises  by 
another.  Constructive  notice  affects  all  persons  interested  alike.^ 
Therefore,  if  the  assignee  omits  to  record  his  assignment,  and  an 
elder  mortgage  of  which  he  had  no  notice,  but  of  which  his  as- 
signor had  notice,  is  first  recorded,  he  will  hold  subject  to  such 
elder  mortgage  ;  and  he  would  also  hold  subject  to  it  if  such  elder 
mortgage  had  been  recorded  before  he  took  the  assignment,  but 
after  the  recording  of  the  mortgage  assigned. ^ 

But,  on  the  other  hand,  it  is  held  in  some  states  that  an  assignee 
of  a  mortgage  and  bond  without  notice  of  an}^  equities  affecting  it 
takes  it  subject  to  a  prior  unrecorded  mortgage,  or  to  any  other 
equity  of  which  the  mortgagee  had  actual  notice.^  In  these  states 
it  is  said  that  bonds  and  mortgages  have  not  been  placed  upon  the 
footing  of  commercial  paper,  and  that  purchasers  deal  in  them  at 
their  own  risk.* 

476.  Priority  between  different  assignees  of  the  same  mort- 
gage. —  It  is  not  often  that  the  question  of  the  priority  rights 
under  different  assignments  of  the  same  mortgage  can  arise,  be- 
cause an  assignment  is  generally  accompanied  by  a  delivery  of  the 
note  or  bond  secured  by  the  mortgage  and  of  the  mortgage  itself ; 
and  except  under  peculiar  circumstances  a  person  acting  in  good 
faith  would  not  take  a  mere  written  transfer  of  the  mortgage  title 
without  a  delivery  of  these.  The  fact  that  the  assignor  did  not 
have  these  papers  to  deliver  would  be  enough  ordinarily  to  put 
the  purchaser  on  his  guard,  even  if  it  did  not  amount  to  notice 
to  him  of  a  prior  assignment.  At  any  rate  the  absence  of  these 
papers  would  be  enough  to  put  in  doubt  his  good  faith  in  taking 

1  Trustees  of  Union  College  v.  Wheeler,     Brijjgs,  6  Paige  (N.  Y.),  323  ;  Jackson  v. 
59   Barb.    (N.  Y.)    585;  Jackson  v.  Van     Given,  8  Johns.  (N.  Y.)  137. 
Valkenburgh,  8  Cow.  (N.  Y.)  260  ;  Bush         2  port  v.  Burch,  5  Denio  (N.  Y.),  187. 
V.  Lathrop,  22  N.  Y.  535,  549  ;  Varick  v.        »  Conover  v.  Van  Mater,  18  N.  J.  481. 

*  Conover  r.  Van  Mater,  supra. 

359 


§§  477,  478.]      REGISTRATION   AS   AFFECTING  PRIORITY. 

the  assignment ;  and  would  make  him  chargeable  with  notice  of 
any  defect  there  may  be  in  the  assignor's  title. ^ 

But  if  two  assignments  of  the  same  mortgage  by  any  means  are 
made  and  taken  by  different  persons  in  good  faith,  of  course  the 
assignee  who  first  records  his  assignment  would  gain  the  better 
title  to  the  mortgage,  if  he  has  paid  full  value  for  it  at  the  time 
of  taking  it.  If  he  paid  only  part  of  the  consideration,  then  he 
would  have  priority  only  to  the  extent  of  the  payment  made  by 
him  ;  for  he  is  then  a  purchaser,  and  entitled  to  protection  only  to 
that  extent.^ 

477.  Manner  of  recording  an  assignment,  —  When  an  as- 
signment of  a  mortgage  is  indorsed  upon  the  mortgage  deed,  which 
is  referred  to  as  "  the  within  described  mortgage,"  it  is  sufficient 
to  record  the  assignment  without  recording  the  mortgage  with  it 
anew.^  A  reference  is  usually  made  by  the  register  from  the  rec- 
ord of  one  instrument  to  the  other ;  but  unless  required  by  law, 
this  is  not  essential.  A  recital  of  the  names  of  the  parties  to  the 
mortgage,  and  its  date,  is  a  sufficient  identification  of  it ;  although 
it  is  usual  in  addition  to  this  description,  when  the  assignment  is 
not  indorsed  upon  the  mortgage,  to  refer,  in  the  description  of  it, 
to  the  book  and  page  of  the  record. 

478.  The  same  principles  apply  equally  to  the  record  of  any 
agreement  aflfecting  a  mortgage.  —  If  not  executed  with  the  for- 
malities entitling  it  to  be  recorded,  the  record  affords  no  construc- 
tive notice  of  its  contents.  If,  for  instance,  land  subject  to  a 
mortgage  is  sold,  and  mortgaged  back  for  the  purchase  price,  the 
vendor  agreeing  to  pay  off  the  elder  mortgage,  or  in  default  of  so 
doing  to  allow  the  purchaser  to  pay  it,  and  have  the  amount  of  it 
deducted  from  the  mortgage  given  for  the  price  of  the  land,  and 
this  agreement  without  being  entitled  to  be  recorded  is  neverthe- 
less put  upon  record,  and  the  purchaser  subsequently  pays  the 
elder  mortgage  as  contemplated  by  the  agreement,  an  assignee 
of  the  mortgage  for  the  purchase  money,  having  no  actual  notice 

1  Kellogg  V.  Smith,  26  N.  Y.  18  ;  Brown  Y.)  389  ;  42  N.  Y.  334  ;  Campbell  v.  Ved- 
V.  Blydenhurgh,  7  N.  Y.  141.  der,  3   Keyes    (N.  Y.),  174;  Bush  tJ.La- 

2  Pickett  V.  Barron,  29  Barb.  (N.  Y.)     throp,  22  N.  Y.  535. 

505;  Purdy  v.  Huntington,  46  Barb.   (N.         3  Carli  v.  Taylor,  15  Minn.  171. 

360 


REGISTRY    ACTS    OF   THE   SEVERAL    STATES,       [§§  479-481. 

of  this  agreement,  is  not  concluded  by  it ;  but  may  bold  bis  mort- 
gage for  tbe  original  amount  of  it.^ 

479.  The  registry  laws  apply  to  a  mortgage  of  a  grcwing 
crop,  or  to  an  agreement  constituting  a  lien  upon  it.  A  verbal 
agreement,  or  an  agreement  in  writing,  not  recorded,  whereby 
the  crop  is  pledged  by  a  tenant  of  land  to  the  owner,  as  security 
for  advances,  is  of  no  validity  as  against  a  mortgage  of  it  after- 
wards made  and  duly  recorded.^ 

2.  Registry  Acts  of  the  Several  States. 

480.  In  general.  —  Although  the  general  effect  of  the  regis- 
tr}^  acts  of  the  several  states  is  the  same,  there  is  considerable 
difference  of  detail  in  them,  and  no  general  statement  of  their 
provisions  would  be  of  any  value.  It  has  been  thought  worth 
while  to  give  a  synopsis  of  the  statutes  of  each  state  upon  this 
subject,  both  on  account  of  the  practical  use  of  the  statutes  them- 
selves, and  for  the  exj51anation  they  afford  of  the  want  of  har- 
mony in  the  adjudications  of  different  states  upon  this  subject. 
It  has  been  thought  best,  also,  to  give  in  the  form  of  notes  to 
these  statutes,  and  as  intimately  connected  with  them,  the  pro- 
visions of  the  several  states  in  relation  to  the  acknowledgment 
of  deeds,  and  the  forms  of  acknowledgment  provided  by  statute 
or  in  general  use. 

481.  Alabama.^  —  Mortgages  and  unconditional  conveyances 

^  Dulton  V.  Ives,  5  Mich.  515.  circuit  courts  and   their  clerks,  by  chan- 

2  Jones  V.  Ciiainberliu,  5  Heisk.  (Tenn.)  celiors,  registers  in  cliancery,  judges  of 
210.  This  case  is  liisiinguished  from  Ted-  the  courts  of  probate,  justices  of  the  peace, 
ford  V.  Wilson,  3  Head  (Tenu.),  311,  and  notaries  public.  Without  the  state 
where  it  was  agreed  that  the  proceeds  of  and  within  the  United  States  they  may  be 
a  farm  should  be  liable  for  the  wages  of  a  taken  by  judges  and  clerks  of  any  federal 
person  who  entered  into  possession  of  it  court,  judges  of  any  court  of  record  in  any 
and  carried  it  on  for  the  owner.  Being  in  state,  notaries  public,  or  commissioners 
possession  he  was  lield  to  be  entitled  to  appointed  by  the  governor  of  this  state, 
apply  the  crops  to  the  satisfaction  of  his  Beyond  the  limits  of  the  United  States 
claim  for  wages  as  against  a  creditor  of  the  they  may  be  taken  by  the  jndge  of  any 
owner,  and  that  the  registration  act  did  court  of  record,  mayor,  or  magistrate  of 
not  apply.  any  city,  town,  borough,  or   county,  by 

3  Alabama.  —  Acknowledgments  and  notaries  public,  or  by  any  diplomatic,  con- 
proofs  of  conveyances  may  be  taken  with-  sular,  or  commercial  agent  of  the  United 
in  the  state  by  judges  of  the  supreme  and  States.     Code,  1867,  §§  1545,  1546. 

361 


§481.] 


REGISTRATION    AS    AFFECTING   PRIORITY. 


to  secure  debts  created  at  the  date  thereof  are  void  as  to  subse- 
quent purchasers  and  incumbrancers  having  no  notice,  unless  re- 
corded in  the  office  of  the  judge  of  probate  for  the  county  where 
the  property  is  situated  within  three  months  from  their  date. 
Other  conveyances  to  secure  debts  are  void  as  against  subsequent 
purchasers  and  incumbrancers,  who  acquire  rights  before  the  re- 
cording of  them.  These  provisions  include  absolute  conveyances, 
with  a  separate  defeasance.^  The  object  of  the  statute  being  the 
prevention  of  fraud,  the  letter  of  the  statute  must  often  yield  to 
the  spirit ;  thus  it  is  held  that  actual  notice  of  the  existence  of  a 
mortgage  by  a  subsequent  purchaser  or  mortgagee,^  or  by  a  sub- 
seqiient  judgment  creditor,^  is  equivalent  to  registration.  Nor  is 
the  record  of  the  mortgage  essential  to  its  validity  as  against  the 
mortgagor;*  or  as  against  his  creditors  other  than  judgment 
creditors."  The  record  is  in  law  complete  from  the  delivery 
of  the  deed  to  the  recording  officer,^  and  therefore  a  mistake 
by  him  in  copying,  as  to  the  sum  secured  by  the  mortgage,  can- 
not prejudice  the  mortgagee.'^ 


If  tliere  be  no  ackuowledgment,  a  con- 
veyance may  be  admitted  of  record  on 
proof,  when  attested  by  two  witnesses. 
Couveytinces  by  married  women  should  be 
attested  by  two  witnesses,  or  acknowl- 
edged.    The  husband  should  join.      The 


ing  sworn,  stated  that  ,  the  grantor 

in  the  conveyance,  voluntarily  executed 
the  same  in  his  presence,  and  in  the  pres- 
ence of  the  other  subscribing  witness,  ou 
the  day  the  same  bears  date ;  that  he  at- 
tested   the   same  in  the  presence   of  the 


wife  whether  of  full  age  or  not  may  release     grantor,  and  of  the  other  witness,  and  that 
dower  by  joining  her  husband  in  the  con- 
veyance, in  presence  of  two  witnesses  and 
acknowledging   the   deed.      lb.  §§    1626, 
1628. 

The  form  given  by  statute,  §  1548,  is: 
The  State  of  ,  County  of — .  I  (name 
and  style  of  the  officer) ,  hereby  certify 
that  ,  whose  name  is  signed    to  the 

foregoing  conveyance,  and  who  is  known 
to  me,  acknowledged  before  me  on  this 
day,  that  being  informed  of  the  contents 
of  tlie  conveyance,  he  executed  the  same 
voluntarily,  on  the  day  the  same  bears 
date.  Given  under  my  hand  this 
day  of         ,  A.  D.  18    •  A.  B. 

The  statute  form  of  proof  is  as  follows, 
§1549:  The   State   of  County. 

I  (name  and  style  of  the  officer),  hereby 
certify  that  ,  a  subscribing  witness 

to   the  foregoing  conveyance,   known   to 
me,  appeared  before  me  this  day,  and  be- 

362 


such  other  witness  subscribed  his  name  as 
a  witness  in  his  presence.  Given  under 
my    hand,    this  day  of  ,    A.    D. 

18     .  A.  B. 

1  Rev.  Code,  1867,  §§  1557,  1558;  and 
see  Coster  v.  Bank  of  Ga.  24  Ala.  37  ;  De 
Vendal  v.  Malone,  25  Ala.  272.     , 

2  Wyatt  V.  Stewart,  34  Ala.  716;  Boyd 
V.  Beck,  29  Ala.  703  ;  Bearing  v.  Wat- 
kins,  16  Ala.  20. 

3  VVallis  V.  Rhea,  10  Ala.  451  ;  12  Ala. 
646  ;  Jordan  v.  Mead,  12  Ala.  247. 

4  Smith  V.  Branch  Bank  of  Mobile,  21 
Ala.  125;  Andrews  v.  Burns,  11  Ala. 
691. 

5  Ohio  Life  Ins.  &  Trust  Co.  v.  Led- 
yard,  8  Ala.  866  ;  Daniel  v.  Sorrells,  9 
Ala.  436;  Center  v.  P.  &  M.  Bank,  22 
Ala.  743. 

6  Code,  §  ]  539. 

T  Mims  V.  Mims,  35  Ala.  23. 


^ 


REGISTRY   ACTS    OF    THE   SEVERAL    STATES.       [§§  482,  483. 

482.  Arkansas.^  —  A  mortgage  is  a  lien  on  the  mortgaged 
property  from  the  time  it  is  filed  in  the  recorder's  office  for  record, 
and  not  before.^  The  record  must  be  made  in  the  recorder's  office 
for  the  county  where  the  land  is  situate.^ 


483.  California.'^  —  Mortgages  are  acknowledged  and  recorded 


1  Arkansas. — Acknowledgments  with- 
in the  state  may  be  taken  before  the  su- 
preme or  circuit  court,  or  either  judge  or 
clerk  thereof,  or  before  the  county  court  or 
presiding  judge  thereof,  or  any  justice  of 
the  peace  or  notary  public ;  elsewhere  in 
the  United  States,  before  any  court  of  the 
United  States,  or  of  any  state  or  territoiy 
having  a  seal,  or  the  clerk  thereof,  mayor 
or  chief  officer  of  any  city  or  town  having 
a  seal  of  office,  or  notary  public  ;  and  out 
of  the  United  States  before  any  court 
having  a  seal,  or  any  mayor  or  chief  offi- 
cer of  any  city  or  town  having  an  official 
seal,  or  before  any  officer  of  any  foreign 
country,  who  by  its  laws  is  authorized  to 
take  probate  of  the  conveyance  of  real  es- 
tate of  his  own  country,  if  he  have  an  offi- 
cial seal.  Proof  of  the  execution  may  also 
be  made  by  one  or  more  of  the  subscribing 
witnesses.  Dig.  of  Stat.  1858,  c.  37  ;  Acts 
1874,  p.  58. 

lu  a  release  of  dower  the  wife  should 
acknowledge,  but  no  separate  examination 
required. 

State  of  ,  County  of  ,  ss. 

Be  it  remembered,  that  on  this  day  came 
before  the  undersigned  (name  and  title  of 
officer),  within  and  for  the  county  afore- 
said duly  commissioned  and  acting  , 
to  me  well  known  as  the  grantor  in  the 
foregoing  deed,  and  stated  that  he  had  ex- 
ecuted the  same  for  the  consideration  and 
pui-poses  therein  mentioned  and  set  forth. 

And  on  the  same  day,  also  voluntarily 
appeared  before  me  ,  wife  of  the  said 

,  to  me  well  known,  and  in  the  ab- 
sence of  her  said  husband,  declared  that 
she  had  of  her  own  free  will  signed  and 
sealed  the  relinquishment  of  dower  in  the 
foregoing  deed,  for  the  purposes  therein 
contained  and  set  forth,  without  compul- 
sion or  undue  influence  of  her  said  hus- 


band.   Witness  my  hand  and  seal,  as  such 
(title  of  officer),  on  this  day  of  , 

187  . 

(Signature  and  title  of  officer.) 

2  Dig.  of  Stat.  799. 

3  lb.  p.  268. 

*  California.  —  Acknowledgments 
within  the  state  may  be  made  before  a 
justice  or  clerk  of  the  supreme  court,  a 
judge  or  clerk  of  a  court  of  record,  a 
mayor  or  recorder  of  a  city,  a  court  com- 
missioner, county  recorder,  notary  public, 
or  a  justice  of  the  peace  ;  elsewhere  in  the 
United  States,  before  a  justice,  judge,  or 
clerk  of  a  court  of  record  of  the  United 
States,  an}- justice  or  judge  of  any  court 
of  record,  a  notary  public,  or  by  a  com- 
missioner appointed  by  the  governor  of 
this  state  for  that  purpose ;  also  by  any 
other  officer  of  the  state  or  territory  where 
the  acknowledgment  is  made,  authorized 
by  its  laws  to  take  such  proof  or  acknowl- 
edgement; and  out  of  the  United  States, 
before  a  minister,  commissioner,  or  charge 
d'affaires  of  the  United  States  resident 
and  accredited  in  the  country  where  the 
proof  or  acknowledgment  is  made,  or  a 
consul,  vice-consul,  or  consular  agent  of 
the  United  States  resident  in  the  country 
where  the  proof  or  acknowledgment  is 
made,  or  a  judge  of  a  court  of  record  of 
the  country  where  the  proof  or  acknowl- 
edgment is  made,  or  commissioner  of 
deeds  of  tliis  state,  or  a  notary  public. 
Civil   Code,  §§  1181,  1182,  118-3. 

Neither  dower  nor  curtesy  exists. 

The  general  form  of  acknowledgment 
given  by  statute  (§  1189)  is  :  State  of 

,  County  of         ,  ss.    On  this         day 

of        ,  in  the  year        ,  before  me  (name 

and  quality  of  officer),  personally  appeared 

,  known  to  me  (or  proved  to  me  on 

the  oath  of  )  to  be  the  person  whose 

363 


§  484.]  REGISTRATION   AS   AFFECTING   PRIORITY. 

in  the  same  manner  as  grants  of  real  estate,  but  the  record 
must  be  made  in  separate  books  kept  for  mortgages  exclusively. 
Without  such  record  they  are  void  as  against  subsequent  pur- 
chasers in  good  faith  for  a  valuable  consideration,  whose  convey- 
ance is  first  duly  recorded.  The  mortgagee  is  allowed,  from  the 
date  of  the  mortgage,  one  day  for  every  twenty  miles  of  the  dis- 
tance between  his  residence  and  the  county  recorder's  office,  where 
the  mortgage  ought  to  be  recorded,  during  which  time  the  mort- 
gage has  the  same  effect  as  if  recorded.  Every  grant  which  ap- 
pears by  any  other  writing  to  be  intended  as  a  mortgage  must  be 
recorded  as  such,  and  if  the  grant  and  other  writing  are  not  re- 
corded together,  at  the  same  time  and  place,  the  grantee  can 
derive  no  benefit  from  such  record.  When  a  grant  purports  to 
be  an  absolute  conveyance,  but  is  intended  to  be  defeasible  on 
the  performance  of  certain  conditions,  the  defeasance  must  be  re- 
corded in  order  to  defeat  or  affect  the  absolute  grant  as  against 
any  person  other  than  the  grantee,  his  heirs,  or  devisees,  or  per- 
sons having  actual  notice. ^ 

The  provision  of  the  Code,  allowing  the  mortgagee  one  day  for 
every  twenty  miles  between  his  residence  and  the  recording  office 
for  recording  his  deed,  is  subject  to  the  provision  that  the  mort- 
gage or  conversance  first  recorded  takes  precedence.^ 

484.  Colorado.^  —  Mortgages  are  recorded  in  the  office  of  the 

name   is  sub^scribed  to  the  within   instru-  i  Civil  Code,  1872,  §§  1214,2937,2949, 

ment,  and  acknowledged  to  me  that  he  ex-  2950,  2952. 

ecuted  the  same.  2  odd  Fellows  Sav.  Bank  v.  Banton,  46 

(Seal.)                 (Signature  and  title.)  Cal.  603. 

A  married  woman  need  not  join  in  the  ^  Colorado. — Acknowledgments  with- 
mortgage  unless  the  property  is  the  home-  in  the  state  may  be  taken  before  any  jus- 
stead,  or  her  separate  estate.  Her  acknowl-  ticc  of  the  supreme  or  district  courts,  or 
edgment  is  the  same  as  the  above,  except  any  clerk  of  either  of  said  courts,  or  the 
in  place  of  the  termination  commencing  deputy  of  any  such  clerk,  or  before  the 
"  and  acknowledged,"  say,  "  described  as  probate  judge  of  any  county,  such  pro- 
a  married  woman  ;  and  upon  an  exam-  bate  judge  and  clerks  certifying  under 
ination  without  the  hearing  of  her  hus-  the  seal  of  court ;  before  any  clerk  of  any 
band  I  made  her  acquainted  with  the  con-  county  or  his  deputy  under  the  seal  of  the 
tents  of  the  instrument,  and  thereupon  she  county;  before  any  notary  public  under 
acknowledged  to  me  that  she  executed  the  his  notarial  seal ;  or  before  any  justice  of 
same,  and  that  she  does  not  wish  to  re-  the  peace  within  his  county,  though  when 
tract  such  execution."  the  lands  do  not  lie  in  his  county,  a  cer- 

(Seal.)                  (Signature  and  title.)  tificate  of  his  official  capacity  under  the 

Civil  Code,  §  1191.  hand  of  the  clerk  of  that  county  and  the 

364 


REGISTRY    ACTS   OF  THE   SEVERAL   STATES. 


[§  485. 


recorder  of  tlie  county  where  the  land  is  situate,  and  from  the 
time  of  fihng  of  the  same  take  effect  as  to  subsequent  bond  fide 
purchasers  and  incumbrancers  not  having  notice.  Conveyances 
are  deemed  to  be  notice  from  the  time  of  filing  for  record,  though 
not  acknowledged  or  proven  according  to  law  ;  but  cannot  be  of- 
fered in  evidence  unless  subsequently  acknowledged  or  proved  ac- 
cording to  law.i 

485.  Connecticut.^ — No  mortgage  is  effectual  to  hold  lands, 

seal  of  court  must  be  affixed.  Elsewhere  instrument  of  writing  as  a  party  thereto, 
in  the  United  States  they  may  be  taken  appeared  before  me  this  day  in  person,  and 
before  the  secretary  of  any  state  or  terri-  acknowledged  that  he  executed  the  same 
tory  under  the  seal  of  such  state  or  terri-  for  the  uses  and  purposes  therein  set  forth, 
tory ;  before  the  clerk  of  any  court  of  Witness  my  hand  and  seal  of  said  court 
record  of  such  state  or  territory,  or  of  this  day  of  ,  A.  d.  187  . 
the  United  States,  having  a  seal,  under  (Signature.) 
the  seal  of  such  court;  before  any  officer  ^  Rev.  Stat.  1868,  pp.  Ill,  112. 
authorized  by  the  laws  of  such  state  or  2  Connecticut.  —  Acknowledgments 
territory  to  take  anfl  certify  suchacknowl-  within  or  without  the  state  may  be  made 
ments,  provided  there  be  affixed  a  certificate  before  a  justice  of  the  peace,  notary  pub- 
by  the  clerk  of  some  court  of  record  of  the  lie,  judge  of  a  court  of  record  of  this  state 
county,  city,  or  district,  where  the  officer  or  of  the  United  States ;  commissioner 
resides,  under  the  seal  of  court,  that  he  is  of  the  school  fund,  commissioner  of  the 
the  officer  he  assumes  to  be,  that  he  has  superior  court,  town  clerk,  or  assistant 
authority  by  the  laws  of  such  state  or  ter-  town  clerk  ;  in  any  other  state  or  territory 
ritory  to  take  and  certify  such  acknowl-  of  the  United  States,  before  a  commissioner 
edgment,  and  that  his  signature  to  the  appointed  by  the  governor  of  this  state  and 
certificate  of  acknowledgment  is  his  true  residing  therein,  or  before  any  officer  au- 
signature ;  or  before  a  commissioner  of  thorized  to  take  the  acknowledgment  of 
deeds  appointed  under  the  laws  of  this  deeds  in  such  state  or  territory.  Out  of  the 
state,  certified  under  his  official  seal.  Out  United  States  they  may  be  made  before  a 
of  the  United  States,  before  any  court  of  United  States  consul,  notary  public,  or  jus- 
record  having  a  seal,  the  judge  or  justice  tice  of  the  peace.  A  notarial  seal  is  gener- 
certifying  it  under  the  seal  of  such  court ;  ally  accepted  without  further  proof  of  offi- 
beforc  the  mayor  or  other  chief  officer  of  cial  character.  An  acknowledgment  by  a 
any  city  or  town  having  a  seal,  or  before  justice  of  the  peace  should  be  accompanied 
any  consul  of  the  United  States,  certified  by  a  certificate  of  his  official  capacity  un- 
under    the    seal   of   the  consulate.     Rev.  der  the  hand  of   the  county  clerk.    Gen. 

Stat.  1875,  pp.  352,  353. 
No  separate  examination  of  wife. 
The    certificate    may    be    as     follows: 

State  of  ,  County  of  ,  a.  d. 

187-.     Then  and  there  before  me  , 


Stat.  1868,  c.  17,  §  13. 

Dower  abolished.     Wife  need  not  joiu 
in  husband's  deed,  or  husband  in  wife's. 

Form  of  certificate  :    State  of  , 

County  of  ,  ss.     I  (naming  officer), 

within  and  for  the  county  and  state  afore-     duly    commissioned    and  acting   as   such, 
said,  do  hereby  certify  that  ,  who  is     personally   appeared  and 

personally  known  to  me  (who  was  proven     his  wife,  signors  and  sealers  of  the  fore- 
to  me  by  the  oath  of  ,a  credible  wit-     going  instrument,  and  severally  acknowl- 

ness),  to  be  the  same  person  whose  name    edged  the  same  to  be  their  free  act  and 
is  subscribed  to  the  foregoing   (or  within)     deed  before  me. 

365 


§  486.]  REGISTRATION   AS   AFFECTING   PRIORITY. 

against  any  other  person  but  the  mortgagor  and  his  heirs,  unless 
recorded  on  the  records  of  the  town  where  the  lands  lie.  A  rec- 
ord of  an  unacknowledged  deed,  or  of  any  instrument  creating 
an  equitable  interest,  is  notice  to  all  the  world  of  an  equitable  in- 
terest. All  conveyances  of  lands  of  which  the  grantor  is  ousted 
by  the  entry  and  possession  of  another,  unless  made  to  the  person 
in  actual  possession,  are  void.^  Possession  by  a  mortgagee  is  not, 
however,  adverse.^ 

486.  Dakota  Territory.^  —  Mortgages  are  recorded  with  the 
register  of  deeds  for  the  county  where  the  land  lies.  The  record 
is  made  in  books  kept  exclusively  for  mortgages.  The  conveyance 
made  in  good  faith  and  for  a  valuable  consideration  which  is  first 
recorded  has  precedence.  The  record  is  notice  to  all  subsequent 
purchasers  and  incumbrancers.  Every  grant  which  appears  by 
any  other  writing  to  be  intended  as  a  mortgage  must  be  recorded 
as  such ;  and  if  such  grant  and  other  writing  explanatory  of  its 


Witness  my  hand  and  seal  of  office,  on 
this  day  of  ,  187-. 

(Signature  and  title.)    (Seal.) 

1  Revision  1875,  pp.  353,  354. 

2  Sanfordr.  Washburn,  2  Root  (Conn.), 
499. 

3  Dakota  Territory.  —  Acknowledg- 
ments within  the  territory  may  be  made  be- 
fore a  judge  of  a  court  of  record,  a  mayor 
or  recorder  of  a  city,  justice  of  the  peace, 
commissioner  of  deeds,  notary  public,  pro- 
bate judge,  or  any  public  officer  having  an 
official  seal  ;  without  the  territory,  before 
a  judge  of  the  superior  court  or  of  a  district 
court  of  the  United  States,  a  judge  of  the 
supreme,  superior,  or  circuit  court  of  any 
state  or  territory  where  the  acknowledg- 
ment is  made  who  is  authorized  by  its  laws 
to  take  acknowledgments,  or  a  commis- 
sioner appointed  by  the  governor  of  this 
territory  for  the  purpose,  or  before  any 
public  officer  having  a  seal.  Civil  Code, 
§§  517,  518;   Laws  1872-3,  c.  31. 

Where  the  certificate  of  any  officer  with- 
out the  territory  is  made  under  his  hand 
and  seal,  no  further  authentication  is  nec- 
essary.    An  acknowledgment  without  the 

366 


United  States  may  be  made  before  any 
diplomatic  officer  or  consul  of  the  United 
States  resident  in  the  country  where  it  is 
made ;  or  before  a  judge  of  the  highest 
court  of  any  of  the  British  American  prov- 
inces ;  or  before  the  mayor  or  chief  mag- 
istrate of  any  city  in  the  British  Islands. 
Civil  Code,  §  519. 

Dower  and  curtesy  are  abolished.  In  a 
release  of  homestead,  or  conveyance  of  her 
own  property  executed  within  the  territory, 
the  wife  should  acknowledge  after  a  sepa- 
rate examination.     Civil  Code,  §§521,  522. 

Form  of  certificate  :  — 

Territory  of  ,  County  of  ,  ss. 

On   this  day   of  ,  in  the  year 

187-,  before  me  personally  comes  A.  B. 
and  C.  D.  his  wife,  to  me  known  to  be  the 
individuals  described  in,  and  who  executed 
the  within  instrument,  and  severally  ac- 
knowledged that  they  executed  the  same 
for  the  purposes  therein  mentioned.  And 
the  said  C.  D.  on  a  private  examination  by 
me  made,  apart  from  her  husband,  acknowl- 
edged that  she  executed  the  same  freely, 
and  without  any  fear  or  compulsion  of  her 
said  husband.         (Signature  and  title.) 


REGISTRY    ACTS   OF   THE   SEVERAL   STATES.  [§  487. 

true  character  are  not  recorded  together  at  the  same  time  and 
place,  the  grantee  can  derive  no  benefit  from  such  record.^ 

487.  Delaware.^  —  Mortgages  and  conveyances  in  the  nature 
of  mortgages  have  priority  according  to  the  date  of  record  in  the 
recorder's  office  for  the  county.  If  two  or  more  mortgages  of  the 
same  premises  are  lodged  in  the  office  at  the  same  time,  they  stand 
in  priority  according  to  their  respective  dates.  A  mortgage,  for 
purchase  money  recorded  within  sixty  days  after  making  it  has 
precedence  to  any  judgment  or  other  lien  of  prior  date.^ 

If  there  be  a  conveyance  absolute  on  the  face  of  it,  and  also  a 
defeasance  or  written  contract  in  the  nature  of  a  defeasance,  or 
for  a  reconveyance  of  the  premises  or  any  part  of  them,  the  per- 
son to  whom  such  conveyance  is  made  must  cause  to  be  indorsed 
thereon  and  recorded  therewith  a  note  stating  that  there  is  such 
defeasance  or  contract,  and  the  general  purport  of  it,  or  the  re- 
cording of  such  conveyance  is  of  no  effect ;  and  such  defeasance 
or  contract  must  be  duly  acknowledged  or  proved,  and  recorded 
in  the  recorder's  office  for  the  county  within  sixty  days  after  the 
day  of  making  the  same,  or  it  will  not  avail  against  a  fair  creditor, 
mortgagee,  or  purchaser  for  a  valuable  consideration  from  the  per- 
son to  whom  the  conveyance  is  made  ;  unless  it  appear  that  such 
creditor  when  giving  the  credit,  or  such  mortgagee  or  purchaser 

1  Civil  Code,  1871,  §§  530,  1626-1628.  The  wife  in  release  of  dower  should  ac- 

2  Delaware.  —Acknowledgments  in  knowledge  after  a  separate  examination, 
the   state  may  be  taken  in   the  superior        Form  of  certificate  given  by  statute,  p. 
court,   or  before    the   chancellor,  or   any  502,  §  9  :  — 

judge,  notary  public,  or  before  two  jus-  State  of  ,  County  of  ,  ss.  Be 
tices  of  the  peace  for  the  .same  county.  it  remembered  that  on  this  day  of 
Acknowledgments  out  of  the  state  may  ,  a.  d.  ,  personally  came  before 
be  made  before  any  consul-general,  consul,  the  subscriber  (name  and  title)  and 
or  commercial  agent  of  the  United  States  his  wife,  parties  to  this  indenture, 
duly  appointed  in  any  foreign  country,  at  known  to  me  personally  (or  proved  on  the 
the  places  of  their  official  residences,  or  be-  oath  of  )  to  be  such,  and  severally 
foreany  judge  of  a  district  or  circuit  court  acknowledged  said  indenture  to  be  their 
of  the  United  States,  or  the  chancellor,  or  act  and  deed  respectively,  and  that  the  said 
any  judge  of  a  court  of  record,  or  the  ,  being  at  the  same  time  privately  ex- 
mayor  or  chief  officer  of  any  city  or  bor-  amined  by  me  apart  from  her  husband,  ac- 
ough,  and  certified  under  the  hand  of  such  knowledged  that  she  executed  the  said  in- 
officer  and  the  seal  of  his  office,  court,  city,  denture  willingly,  without  compulsion,  or 
or  borough  ;  or  in  open  court,  certified  un-  threats  or  fear  of  her  husbands'  displeasure. 
dcr  the  hand  of  the  clerk  and  seal  of  the  Given  under  my  hand  and  official  seal  the 
court;  or  before  a  commissioner  of  deeds  day  and  year  aforesaid, 
appointed  by  the  governor.  Rev.  Stat.  (Signature  and  title.) 
1874,  pp.  501,  502.  ^  Rev.  Code,  1874,  p.  504. 

367 


§§  488,  489.]       REGISTRATION    AS    AFFECTING    PRIORITY. 

when  advancing  the  consideration,  had  notice  of  such  defeasance 
or  contract.^ 

488.  District  of  Columbia.^  —  Conveyances  of  Lmd  are  recorded 
in  the  office  of  the  recorder  of  deeds.  All  deeds,  except  deeds  of 
trust  and  mortgages,  recorded  within  six  months  after  delivery, 
take  effect  and  are  valid  as  to  all  persons  from  the  time  they  are 
duly  acknowledged  or  proved.  All  deeds  of  trust  and  mortgages 
whenever  delivered  for  record,  and  other  conveyances  delivered 
within  six  months  after  delivery,  take  effect  and  are  valid,  as  to 
all  subsequent  purchasers  for  valuable  consideration,  without  no- 
tice, and  as  to  all  creditors  from  the  time  when  such  deed  of  trust 
or  mortgage,  or  other  conveyance,  shall  have  been  so  acknowledged 
or  proved,  and  delivered  to  the  recorder  for  record,  and  from  that 
time  only.  Of  two  or  more  deeds  of  the  same  property  delivered 
for  record  on  the  same  day,  that  which  was  first  sealed  and  deliv- 
ered has  preference  in  law.^ 

489.  Florida.^  —  No  morto;a":e  is  sood  or  effectual  in  law  or  in 

1  Rev.  Code,  1874,  p.  504.  date  on  the            day  of          ,  and  hereto 

2  District  of  Columbia.  —  Acknowl-  annexed,  personally  appeared  before  me  in 
edgmeuts  within  the  United  States  may  the  county  aforesaid,  the  said  C.  D.  being 
be  made  before  any  judge  of  a  court  of  personally  known  to  me,  as  (or  proved  by 
record  and  of  law,  any  chancellor  of  a  the  oaths  of  credible  witnesses  before  me 
state,  any  judge  of  the  supreme,  circuit,  to  be)  the  person  who  executed  the  said 
district,  or  territorial  courts  of  the  United  deed,  and  acknowledged  the  same  to  be  his 
States,  any  justice  of  the  peace,  notary  act  and  deed.  Given  under  my  hand  and 
public,  or  commissioner  of  the  circuit  court  seal  this            day  of 

of  the  district  appointed  for  the  purpose.  "A.  B.     (Seal)." 

When  taken  out  of  the  district  there  must  A  married  woman    must   be  examined 

be  a  certificate  of  the  register,  clerk,  or  other  privily  and  apart  from  her  husband,  and 

public  officer  having  cognizance  of  the  fact,  the  deed  must  be  fully  explained  to  her. 

under  his  official  seal,  that  at  the  date  of  lb.  p.  53. 

the  acknowledgment  the  officer  was  in  fact  The  certificate  of  acknowledgment  of  a 
the  officer  he  purported  to  be.  Acknowledg-  married  woman  should,  in  addition  to  the 
ments  in  a  foreign  country  may  be  made  be-  foregoing,  say  :  "  And  being  by  me  exam- 
fore  any  judge  or  chancellor  of  any  court,  ined  privily  and  apart  from  her  husband, 
master  in  chancery,  or  notary  public,  or  and  having  the  deed  aforesaid  fully  ex- 
before  any  secretary  of  legation  or  consular  plained  to  her,  she  the  said  E.  F.  ac- 
officer  of  the  United  States.  The  official  knowledged  the  same  to  be  her  free  .act 
character  of  the  officer  must  be  duly  certi-  and  deed,  and  declared  that  she  had  will- 
fied.  Rev.  Stat.  1873,  p.  52.  '"g'j  signed,  sealed,  and  delivered  the 
The  form  of  certificate  (lb.  p.  52)  is  as  same,  and  that  she  wished  not  to  retract  it." 
follows  :  "                 County,  to  wit.     I,  A.  »  Rev.  Stat.  1873,  pp.  52,  53. 

B.  (title),  in  and  for  the  county  aforesaid,  *  Florida.  —  Acknowledgments  may  be 
in  the  state  of          ,  do  hereby  certify  that  made  before  any  judge,  clerk  of  the  circuit 

C.  D.,  a  party  to  a  certain  deed,  bearing  court,  notarv  public,  or  justice  of  the  peace, 

368 


REGISTRY  ACTS  OF  THE  SEVERAL  STATES. 


[§  490. 


equity  against  creditors  or  subsequent  purchasers  for  value  with- 
out notice  unless  recorded;  and  in  order  to  be  entitled  to  record, 
its  execution  by  the  party  making  it  must  be  acknowledged  by 
him,  or  proved  upon  oath  by  at  least  one  of  the  subscribing  wit- 
nesses, before  the  officer  authorized  by  law  to  record  the  deed,  or 
before  some  judicial  officer  of  the  state.  If  executed  by  attorney, 
the  power  of  attorney  must  be  proved  and  recorded  at  the  time  of 
recording  the  mortgage.^ 


490.  Georgia.^  —  A  mortgage  must  be  executed  in  the  pres- 
ence of,  and  attested  by  or  proved  before,  a  notary  public  or  jus- 

withiu  the   state,  or  before  any  judge  or  United  States,  and  certified  under  liis  hand 

clerk  of  a  court  of  record,  notary  public,  and  official  seal.     Bush's  Dig.  p.  149. 

justice  of  the  peace,  or  other  officer  author-  The  certificate  must  show  that  the  ex- 

ized  by  the  laws  of  any  state  or  territory  amination  of  the  wife  was  in  accordance 

or  district  of  the  United  States  to  talie  ac-  with  this  statute,  made  in  the  preseuce  of 

knowledgments  of  deeds  therein,  or  before  the  recpiired  officers. 

any  commissioner  appointed  by  the  gov-  As  to  the  form  of  the  certificate  in  gen- 
ernor  of  this  state  for  that  purpose.  In  a  eral,  it  must  substantially  set  forth  the  mat- 
foreign  country  acknowledgment  may  be  ter  required  to  be  done  to  make  the  ac- 
made  before  any  notary  public  therein,  or  knowledgment  effectual.  Busli's  Dig.  p. 
diplomatic  officer  or  consul  of  the  United  153. 

Stales  appointed  to  reside  therein,  or  be-  i  Bush's  Dig.  of  Laws  1872,  p.  151  ;  and 

fore  a  commissioner  appointed  by  the  gov-  see  Laws,  1873,  p.  18. 

ernor  of  this  state  for  such  purpose.     The  2  Geokgia.  —  In  order  to  admit  a  deed 


certificate,  when  made  in  another  state  or 
country,  must  in  all  cases  be  under  the 
hand  of  the  officer  and  his  seal  of  office  ; 
but  if  the  officer  has  no  official  seal,  his 


to  be  recorded,  it  must  be  attested,  if  within 
the  state,  by  a  judge  of  a  court  of  record, 
a  justice  of  the  peace,  a  notary  public,  or 
clerk  of   the  superior  court.     No  official 


official  character  must  be  properly  certified,  seal  is  necessary.     Out  of  the  state  it  must 

Acts  1873,  p.  18.     And  see  Bush's  Dig.  p.  he  attested  by  a  commissioner  of  deeds  for 

152.     A   wife   may   relinquish   dower   by  this  state,  or  a  consul  or  vice-consul  of  the 

joining  with  her  husband,  or  by  separate  United  States,  the  certificates  of  these  of- 

deed  attested  by  two  witnesses.     She  must  ficers  under  their  seals  being  evidence  that 

also  acknowledge  before  some  judicial  offi-  they  are  such  ;  or  by  a  judge  of  a  court  ot 

cer  or  notary  public  of  the  state,  that  the  record  in  the  state  where  executed,  with  a 

relinquishment  was  made  freely  and  vol-  certificate  of  the  clerk,  under  the  seal  of 

untarily,    and   without    compulsion,   con-  such  court,  of  the  genuineness  of  the  sig- 

straint,  ai)prehension,orfear  of  or  fromher  nature  of  such  judge.     Code,  1873,  §2706. 

husband.     Out  of  the  state  this  acknowl-  There  is  no  necessitj-  for  renunciation  of 

edgment  must  be  tnade  before  a  clerk  of  dower  to  estates  acquired  since  1866.     A 

some  court  of  record,  in  the  presence  of  a  married  woman  may  release  dower  by  join, 

judge  or  justice  of  the  court,  who  shall  cer-  ing  in  the  deed  with  her  husband,  and  ac- 

tify  that  the  acknowledgment  was  made  in  kuowledging  her  voluntary  act  in  signing 

his  presence,  and  that  the  clerk  is  a  clerk  before  the  attesting  officer  at  a  private  ex- 

of  that  court.     In   a  foreign    country  it  amination. 

must  be  made  before  a  diplomatic  officer,  The  certificate  may  be  as  follows  :  — 

or  consul,  or   commercial   agent,  of    the  State  of            ,  County  of         ,  ss.     Be. 

VOL.  I.                        24  369 


§  491.] 


REGISTRATION   AS    AFFECTING    PRIORITY. 


tice  of  any  court  in  this  state,  or  a  clerk  of  the  Superior  Court, 
and  by  one  other  witness,  and  be  recorded  within  three  months 
from  its  date  in  the  county  where  the  hxnd  lies  in  the  office  of  the 
clerk  of  the  Superior  Court.  If  not  recorded  within  the  time  lim- 
ited, it  is  valid  against  the  mortgagor,  but  is  postponed  to  all  other 
liens  or  purchases  made  prior  to  the  record  without  notice  of  the 
unrecorded  mortgage.^  A  mortgage  recorded  in  an  improper  office, 
or  without  due  attestation,  or  so  defectively  recorded  as  not  to 
give  notice  to  a  prudent  inquirer,  is  not  notice ;  but  a  mere  formal 
mistake  in  the  record  does  not  vitiate  it.  The  due  record  of  a 
mortgage,  though  not  made  within  the  time  prescribed,  is  notice 
from  the  time  of  record  to  all  the  world.^ 


491.  Idaho  Territory.^  —  Mortgages  to  operate  as  notice  to 
third  persons  must  be  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  real  estate  is  situate,  but  are  valid  and  bind- 
fore  me  (name  and  title  of  officer),  person-  curtesy.  A  married  woman  in  a  convey- 
ally  came  ,  to  me  known  to  be  the    ance  of  her  separate  estate  must  be  made 

individual  wliose  signature  is  affixed  to  the  acquainted  with  the  contents  of  the  con- 
foregoing  deed,  who  being  sworn  says  that  veyance,  and  must  "  acknowledge,  on  ex- 
he  executed  the  said  deed  for  the  purposes  amination,  apart  from,  and  without  the 
therein  mentioned,  and  acknowledges  the  hearing  of  her  husband,  tliat  she  executed 
same  to  be  his  true  and  lawful  act.  the  same  freely  and  voluntarily,  without 

Sworn  to  and  subscribed  before  me  this    fear  or  compulsion,  or  undue  influence  of 


day  of  ,  187-. 

(Seal.)  (Signature  and  title.) 

1  Code,  1873,  §§  1955-1957,  2750;  see 
Hardaway  v.  Semmes,  24  Ga.  305. 

2  lb.  §§  1959,  1960. 

^  Idaho  Territory. — Acknowledg- 
ments within  the  territory  may  be  taken 
by  any  judge  or  clerk  of  a  court  having 
a  seal,  a  notary  public,  or  justice  of  the 
peace  of  the  proper  county.  Elsewhere 
in  the  United  States  they  may  be  taken  by 
some  judge  or  clerk  of  any  court  of  the 


her  husband,  and  that  she  does  not  wish 
to  retract  the  execution  of  the  same." 
The  certificate  must  set  forth  the  acknowl- 
edgment as  above,  and  that  such  married 
woman  was  personally  known  to  the  of- 
ficer to  be  the  person  whose  name  is  sub- 
scribed to  such  conveyance  as  a  party 
thereto,  or  was  proved  to  be  such  by  a 
credible  witness.     lb.  p.  600. 

Form  of  certificate  given  by  statute,  p. 
598,  is  as  follows  :  — 

State  of  ,  County  of  ,  ss. 


United  States,  or  of  any  state  or  territory.  On  this  day  of  ,  a.  d.  18     ,  per- 

having  a  seal,  or  by  any  commissioner  ap-  sonally   appeared    before   me  (name   and 

pointed  by  the  governor  of  this  territory  title),  A  B.,  personally  known  to  me  to  be 

for   that   purpose.     Without   the   United  the  person  described  in,  and  who  executed 

States  they  may  be  taken  by  some  judge  the  foregoing  instrument  (or  satisfactorily 

or  clerk  of  any  court,  of  any  state,  king-  proved  to  me  to  be,  &c.,  by  the  oath  of  C. 

dom,  or  empire,  having  a  seal,  or  by  any  D.,  a  competent  and  credible  witness,  for 

notary  public  therein,   or  by  any  minis-  that  purpose  by  me  duly  sworn),  and  who 

ter,  commissioner,  or  consul  of  the  United  acknowledged  to  me  that  he  executed  the 

States  appointed  to  reside  therein.     Rev.  same   freely  and  voluntarily  and  for  the 

Laws,  1875,  p.  597.     There  is  no  doweror  use  and  purposes  therein  mentioned. 

370 


REGISTRY  ACTS  OF  THE  SEVERAL  STATES. 


[§  492. 


ing  between  the  parties  without  such  record.  All  conveyances 
from  the  time  of  filing  the  same  with  the  recorder  for  record  im- 
part notice  to  all  persons  of  the  contents  thereof,  and  subsequent 
purchasers  and  mortgagees  are  deemed  to  purchase  and  take  with 
notice.  Conveyances  not  recorded  are  void  as  against  any  sub- 
sequent purchaser  in  good  faith  and  for  a  valuable  consideration 
whose  own  conveyance  is  first  recorded.^ 

492.  Illinois.^  —  Mortgages  are  recorded  in  the  county  in 
which  the  real  estate  is  situated ;  but  if  such  county  is  not  organ- 
ized, then  in  the  county  to  which  such  unorganized  county  is  at- 
tached for  judicial  purposes.^  They  take  effect  and  are  in  force 
from  and  after  the  time  of  filing  for  record,  and  not  before,  as  to 
all  creditors  and  subsequent  purchasers  without  notice.  They  are 
notice  from  the  time  of  filing  for  record,  though  not  acknowl- 
edged or  proven  according  to  law ;  but  cannot  be  read  in  evidence 
unless  their  execution  be  proved  in  the  manner  required  by  the 


1  Kev.  Laws,  1875,  p.  601. 

"  Illinois.  —  Acknowledgments  in  the 
state  may  be  made  before  a  notary  public, 
3r  United  States  commissioner,  who  must 
affix  his  seal ;  a  master  in  chancery,  cir- 
cuit or  county  clerk,  justice  of  the  peace 
(the  official  character  of  the  latter,  if  he 
be  without  the  county  where  the  land  lies, 
to  be  certified  by  the  clerk  of  the  county 
court),  any  court  of  record  having  a  seal, 
or  any  judge  or  justice  of  it,  the  seal  of  the 
court  being  affixed.  Elsewhere  in  the 
United  States,  before  a  justice  of  the  peace 
(liis  official  character  being  certified  as 
above),  notary  public.  United  States  com- 
missioner, commissioner  of  deeds^  mayor 
of  a  city,  or  clerk  of  a  county,  such  officer 
affixing  his  official  seal,  any  judge,  justice 
or  clerk  of  any  United  States,  state,  or  ter- 
ritorial court ;  or  it  may  be  made  in  con- 
formity with  the  laws  of  the  state  where 
made,  in  which  case  a  certificate  of  con- 
formity from  the  clerk  of  a  court  of  record 
should  be  annexed.  Without  the  United 
States  it  may  be  before  any  court  having 
a  seal,  mayor,  or  chief  officer  of  any  city 
or  town,  having  a  seal,  minister,  or  secre- 
tary of  legation,  or  consul  of  the  United 
States  in  any  foreign  country,  attested  by 


his  official  seal,  or  any  officer  authorized 
by  the  foreign  law  to  take  acknowledg- 
ments, his  authority  being  proved,  if  he 
has  no  official  seal ;  or  the  acknowledg- 
ments may  be  in  conformity  with  the  for- 
eign law,  and  so  certified  by  any  consul  or 
minister  under  his  official  seal.  R.  S.  1874, 
pp.  276,  277. 

The  wife  need  not  be  examined  sepa- 
rately. 

Form  of  certificate  given  by  statute.   lb. 
p.  278  :  — 

State   of  ,  County  of  ,  ss. 

I  (name  and  title  of  officer),  do  hereby 
certify  that  and  his  wife, 

personally  known  to  me  to  be  the  same 
persons  whose  names  are  subscribed  to 
the  foregoing  instruments  as  having  ex- 
ecuted the  same,  appeared  before  me  this 
day  in  person,  and  acknowledged  that 
they  signed,  sealed,  and  delivered  the  said 
instrument  as  their  free  and  voluntary  act, 
for  the  uses  and  purposes  therein  set  forth, 
including  the  release  and  waiver  of  the 
right  of  homestead. 

Given  under  my  hand  and  official   seal, 
this  day  of  ,  a.  d.  18     . 

(Seal.)  (Signature  and  title.) 

3  K.  S.  1874,  C.  30,  §28. 
371 


§§  493,  494.]       REGISTRATION   AS    AFFECTING    PRIORITY. 

rules  of  evidence  applicable  to  such  writings,  so  as  to  supply  the 
defects  of  such  acknowledgment  or  proof.^ 

493.  Indiana.^ —  Mortgages  are  recorded  in  the  recorder's  office 
of  the  county  where  the  lands  are  situated  ;  but  if  not  recorded 
within  ninety  days  after  the  execution  of  them,  they  are  fraudu- 
lent and  void  as  against  subsequent  purchasers  or  mortgagees  in 
good  faith,  and  for  a  valuable  consideration.  When  a  mortgage 
is  in  the  form  of  an  absolute  conveyance,  but  is  intended  to  be 
defeasible  by  force  of  a  deed  of  defeasance,  bond,  or  other  instru- 
ment for  that  purpose,  the  original  conveyance  is  not  defeated 
or  affected  as  against  any  person  other  than  the  maker  of  the 
defeasance,  or  his  heirs  or  devisees,  or  persons  having  actual  no- 
tice, unless  the  defeasance  is  recorded  within  ninety  days  after  the 
date  of  the  deed.^ 

Under  this  statute,  when  a  mortgage  has  been  executed  to  one 
person  and  subsequently  a  deed  is  executed  to  another,  and  neither 
is  recorded  within  the  prescribed  time,  the  respective  liens  date 
from  the  time  of  record  and  not  from  the  date  of  the  instruments.* 

494.  lowa.^  —  No  mortgage  is  of  any  validity  against  subse- 

^  R.  S.  c.  30,  §§  30,  31.  and  severally  acknowledged  the  execution 

2  Indiana.  —  To  entitle  deeds  and  mort-  of  the  same, 
gages  to   be  recorded,   they  must  be   ac-        In  witness  whereof  I  have  hereunto  set 
knowledged  or  proved  before  a  judge  or  my  hand  and  affixed  my  official  seal,  the 
clerk  of  some  court  of  record,  justice  of  day  and  year  aforesaid, 
the  peace,  auditor,  recorder,  notary  public,         (Seal.)  (Signature  and  title.) 
mayor  of  a  city,  in  this  or  any  other  state,         ^  Gavin  &  Herd's  Stat,  of  Ind.  260,  261. 
a  commissioner  of  this  state  residing  in         *  Reasoner  v.  Edmundson,  5  Ind.  393. 
another  state,  or  before  a  minister,  charge        ^  Iowa.  —  Acknowledgments    within 
d'affaires,  or  consul  of  the  United    States  the  state  must  be  before  a  court  having  a 
in  a  foreign  country.     If  the  officer  has  an  seal,  or  some    judge  or  clerk  thereof,  or 
official  seal   no  further  attestation  is  re-  some  justice  of  the  peace  or  notary  pub- 
quired.     1  G.  &  H.  Stat.  p.  261.  lie.     Elsewhere  in  the  United  States,  be- 

A  married  woman  need  not  be  examined  fore  some  court  of  record,  or  officer  holding 

separate  and  apart  from  her  husband.   lb.  the  seal  thereof,  or  before  some  commis- 

p.  264,  sioner  of  deeds  appointed  by  the  governor 

Form  of  certificate  (the  statute  form  is  of  this  state,  a   notary  public,  or  justice 

less  formal.    See  lb.  p.  264)  :  —  of  the  peace,  a  certificate  of  the  official 

State  of  ,  County  of  ,  ss.  character  of  the  latter  and  of  the  genu- 

On  this  day  of  ,  a.  D.  187     ,  ineness  of  his  signature   being   required, 

before  me  (name  and  title  of  officer),  per-  Without  the  United    States  the   acknowl- 

sonally  appeared  and  his  edgment   may   be   before   any  diplomatic 

wife,  the  grantors  in   the  foregoing  deed,  officer  or  consul  of  the  United   States  in 

372 


REGISTRY  ACTS  OF  THE  SEVERAL  STATES. 


[§  495. 


quent  purchasers  for  a  valuable  consideration  witliout  notice, 
unless  recorded  in  the  office  of  the  recorder  of  the  county  in  which 
the  land  lies.  To  be  deemed  lawfully  recorded,  it  must  have  been 
previously  acknowledged  or  proved.^ 

495.  Kansas.^  —  Mortgages  proved  or  acknowledged  and  cer- 
tified according  to  law  are  recorded  in  the  office  of  the  register  of 
deeds  of  the  county  in  which  the  real  estate  is  situated.  The  fil- 
ing of  deeds  with  the  register  for  record  is  notice  to  all  persons. 
They  are  not  valid,  except  between  the  parties  and  as  to  persons 
having  actual  notice,  until  they  are  deposited  for  record.  If  exe- 
cuted under  powers  of  attorney,  these  must  be  recorded  at  the 
same  time.^  A  deed  absolute  in  form,  but  intended  to  be  defeasi- 
ble, is  not  affected  as  against  any  person  other  than  the  grantee,  or 
his  heirs  or  devisees,  or  persons  having  actual  notice,  unless  the 
instrument  of  defeasance  is  recorded  after  due  acknowledgment.* 


any  foreign  country,  who  is  authorized  to 
issue  certificates  under  the  seal  of  the 
United  States;  or  before  any  officer  of  a 
foreign  country  M^ho  is  authorized  by  the 
laws  thereof  to  certify  to  the  acknowledg- 
ments of  written  documents;  but  the  cer- 
tificate of  such  foreign  officer  must  be 
authenticated  by  one  of  the  above  named 
officers  of  the  United  States,  whose  certifi- 
cate is  sufficient  evidence  of  the  qualifi- 
cation of  the  officer  and  the  genuineness 
of  his  certificate.  Code,  1873,  §§  1955- 
1957. 

No  separate  examination  of  wife  re- 
quired. 

Form  of  certificate,  requisites  of  which 
are  given  by  statute,  lb.  §  1958  :  — 

State  of  ,  County  of  ,  ss. 

On  this  day  of  ,  a.  d.   187     , 

before  me  (name  and  title),  personally 
came  and  his  wife,  to  me 

personally  known  to  be  the  identical  per- 
sons whose  names  are  affixed  to  the  above 
deed  as  grantors,  and  acknowledged  the 
execution  of  the  same  to  be  their  volun- 
tary act  and  deed. 

Witness  my  hand  and  seal  of  office  this 
day  and  year  above  written. 

(Seal.)  (Signature  and  title.) 

1  Code,  1873,  §§  1941,1942. 


2  Kansas.  —  Acknowledgments  in  the 
state  may  be  made  before  a  court  having  a 
seal,  or  a  judge,  justice,  or  clerk  thereof, 
or  some  justice  of  the  peace,  notary  pub- 
lic, county  clerk,  or  register  of  deeds,  or 
mayor  or  clerk  of  an  incorporated  city ;  out 
of  the  state,  before  some  court  of  record,  oi 
clerk  or  officer  holding  the  seal  thereof, 
or  before  some  commissioner  to  take  the 
acknowledgments  of  deeds,  appointed  by 
the  governor  of  this  state,  or  before  some 
notary  public  or  justice  of  the  peace,  or  be- 
fore any  consul  of  the  United  States  resi- 
dent in  any  foreign  port  or  country.  An 
acknowledgment  taken  before  a  justice  of 
the  peace  must  be  accompanied  by  a  cer- 
tificate of  his  offici.il  character,  under  the 
hand  of  the  clerk  of  some  court  of  record 
and  seal  of  the  court.  All  deeds  executed, 
acknowledged,  or  proved  in  any  other 
state,  territory,  or  country,  in  conformity 
with  the  laws  thereof,  are  valid  in  this  state. 
Dassler's  Stat.  1876,  c.  22,  §§  9-15,  25. 

There  is  no  dower  or  curtesy,  and  no 
separate  examination  of  wife. 

The  form  of  certificate  above  given  for 
the  state  of  Iowa  is  sufficient. 

3  Dassler's  Stat.  1876,  c.  22,  §§  19-24. 
*  lb.  ch.  68,  §  2. 

373 


§§  496,  497.]      REGISTRATION   AS   AFFECTING   PRIORITY. 

496.  Kentucky.^  —  No  deed  of  trust  or  mortgage,  conveying  a 
legal  or  equitable  title  to  real  or  personal  estate,  is  valid  against  a 
purchaser  for  a  valuable  consideration,  without  notice,  or  against 
creditors,  until  acknowledged  or  proved  according  to  law,  and 
lodged  for  i^ecord.  The  record  is  made  in  the  clerk's  office  of  the 
county  in  which  the  property,  or  the  greater  part  of  it,  is  situated. 
All  bond  fide  deeds  of  trust  or  mortgage  take  effect  in  the  order 
in  which  they  are  acknowledged  or  proved  and  lodged  for  record.^ 
If  executed  by  an  attorney  under  a  power,  the  record  of  the  mort- 
gage is  not  constructive  notice  unless  the  power  of  attorney  be 
also  recorded.^  Although  not  recorded,  a  mortgage  or  deed  of 
trust  j^revails  in  equity  against  a  creditor  who  had  notice  of  it  be- 
fore he  acquired  a  legal  title  to  the  mortgaged  property.^ 

497.  Louisiana.^  —  Mortgages  must  be  recorded  in  the  raort- 


1  Kkntucky.  —  Deeds  executed  in  the 
state  by  others  than  married  women  may 
be  acknowledged  before  the  clerk  of  the 
county  court ;  elsewhere  in  the  United 
States  by  the  clerk  of  a  court,  his  deputy, 
or  a  notary  public,  mayor  of  a  city,  or 
secretary  of  state,  or  commissioner  to  take 
the  acknowledgment  of  deeds,  or  by  a 
judge  under  the  seal  of  his  court ;  and 
out  of  the  United  States,  before  any  for- 
eign minister  or  consul,  or  secretary  of  le- 
gation of  the  United  States,  or  by  the 
secretary  of  foreign  aflfiiirs,  certified  under 
his  seal  of  office,  or  the  judge  of  a  superior 
court  of  the  nation  where  the  deed  is  ex- 
ecuted. The  officer  taking  the  acknowl- 
edgment should  certify  it  under  his  seal  of 
office.     Gen.  Stat.  c.  24,  §§  15,  16, 17. 

Deeds  of  a  married  woman  must  be  ac- 
knowledged before  some  of  the  officers  be- 
fore named,  who  shall  explain  to  her  the 
contents  and  effi;ct  of  the  deed  separately 
and  apart  from  her  husband. 

A  certificate  of  acknowledgment  taken 
out  of  the  state  should  be  as  follows.  C. 
24,  §  21  :  — 

State  of  ,  County  of  ,  ss.    I, 

A.  B.  (here  give  title),  do  certify  that  this 
instrument  of  writing  from  C.  D.  and  wife 
E.  F.  was  this  day  produced  to  me  by  the 
parties,  and  which  was  acknowledged  by 

374 


the  said  C.  D.  to  be  his  act  and  deed ;  and 
the  contents  and  effect  of  the  instrument 
being  explained  to  the  said  E.  F.  by  me, 
separately  and  apart  from  her  husband, 
she  thereupon  declared  that  she  did  freely 
execute  and  deliver  the  same  to  be  her  act 
and  deed,  and  consented  that  the  same 
might  be  recorded. 

Given  under  my  hand  and  seal  of  office 
this  day  of  ,187     , 

(Seal.)  (Signature  and  title.) 

2  Gen.  Stat.  1873,  p.  256. 

3  lb.  p.  256  ;  Graves  v.  Ward,  2  Duv. 
(Ky.)301. 

*  Forepaugh  v.  Appold,  17  B.  Mon. 
(Ky.)625,  631, 

5  Louisiana.  —  Acknowledgments  out 
of  the  state  may  be  made  before  a  com- 
missioner of  the  state,  or  may  be  ac- 
knowledged in  conformity  with  the  laws 
of  the' state  where  the  act  is  passed.  The 
official  character  of  the  person  before 
whom  the  acknowledgment  is  made,  how- 
ever, must  be  properly  verified.  Acknowl- 
edgments in  the  state  may  be  made  be- 
fore a  notary  public,  or  parish  recorder,  or 
his  deputy.  In  a  foreign  country  Ameri- 
can ministers,  charges  d'affaires  consuls- 
general,  consuls,  vice-consuls,  and  com- 
mercial agents,  are  authorized  to  act  as 
commissioners,  and  to  use  their  respective 


REGISTRY  ACTS  OF  THE  SEVERAL  STATES. 


[§  -19'5- 


gage  book  of  the  parish  where  the  property  is  situated.  If  not  pub- 
licly inscribed  on  the  records  they  do  not  prejudice  third  persons  ; 
but  neither  the  contracting  parties,  nor  their  heirs,  nor  those  who 
were  witnesses  to  the  act  by  which  the  mortgage  was  stipulated, 
can  take  advantage  of  the  non-inscription  of  the  mortgage.  The 
registry  preserves  the  evidence  of  mortgages  during  ten  years, 
reckoning  from  the  day  of  its  date  ;  its  effect  ceases,  even  against 
the  contracting  parties,  if  the  inscriptions  have  not  been  renewed 
before  the  expiration  of  this  time,  in  the  manner  in  which  they 
were  first  made.^  The  object  of  the  reinscription  is  to  obviate 
the  necessity  of  searching  for  mortgages  more  then  ten  years  back. 
To  effect  it,  a  new  description  of  the  property  is  necessary  ;  and  a 
mere  reference  to  the  previous  mortgage  is  not  sufficient.^ 


498.  Maine. 3 —  Mortgages  are  not  effectual  against  any  person, 
except  the  grantor,  his  heirs  and  devisees,  and  persons  having  actual 
notice,  unless  recorded  in  the  registry  of  deeds  for  the  county  or 
district  where  the  lands  lie.  A  deed  purporting  to  convey  an  ab- 
solute estate  cannot  be  defeated  by  an  instrument  intended  as  a 
defeasance,  as  against  any  other  person  than  the  maker,  his  heirs 


seals  of  office  instead  of  the  commission- 
er's seal.  An  acknowledgment  taken  by 
them  when  duly  certified  has  the  force  and 
effect  of  an  authentic  act  executed  in  tliis 
state.  Kev.  Stat.  1870,  pp.  117,  118.  A 
married  woman,  to  renounce  her  interest, 
must  acknowledge  out  of  the  presence  of 
her  husband. 

1  Rev.  Civil  Code,  1870,  art.  3342- 
3370.  As  to  the  necessity  of  a  separate 
record  of  mortgages,  see  Terot  v.  Cham- 
bers, 2  La.  Ann.  800;  Gillespie  v.  Cam- 
mack,  3  lb.  248 ;  Copley  v.  Dinkgrave,  7 
lb.  595  ;  Cordevioile  v.  Dawson,  26  La. 
Ann.  534 ;  Fisher  v.  Tunnard,  25  La.  Ann. 
179;  Verges  v.  Prejcan,  24  La.  Ann.  78. 
As  to  the  necessity  of  reinscription  after  a 
lapse  of  ten  years,  see  Barelli  v.  Delassus, 
16  La.  Ann.  280;  Liddcll  v.  Rucker,  13 
lb.  .569;  Batey  i'.  Woolfolk,  20  lb.  385; 
Kohn  I'.  jMcHatton,  20  lb.  223;  Levy  v. 
Mentz,  23  lb.  201. 

2  Siiepherd  r.  Orleans  Cotton  Press  Co. 
2  La.  Ann.  100  ;  Hyde  v.  Bennett,  lb.  799  ; 
Poutz  V.  Reggio,  25  La.  Ann.  637. 


8  Maine.  —  Acknowledgments  in  the 
state  may  be  made  before  a  ju-tice  of  the 
peace,  magistrate,  or  notary  public,  in  any 
of  the  United  States,  or  by  a  commis- 
sioner appointed  in  any  other  state  by  the 
governor  of  this  state;  or  by  any  United 
States  minister  or  consul,  or  any  notary 
public  in  any  foreign  country.  Rev.  Stat. 
1871,  p.  561.  When  the  wife  joins  with  her 
husband  to  release  dower,  his  acknowl- 
edgment is  sufficient.  She  need  not  be 
examined  apart  from  her  husband. 

A  proper  form  of  certificate,  when  an 
acknowledgment  is  taken  out  of  the  state, 
is  :  — 

State  of  ,  County  of  ,  ss. 

On  this  day  of  ,  a.  d.  187  , 

personally  appeared  before  me  (name  and 
title  of  officer),  the  above-named  , 

and  acknowledged  the  foregoing  instru- 
ment to  be  his  free  act  and  deed. 

In  witness  wliereof  I  iiave  hereunto  set 
my  hand,  and  affixed  my  official  seal,  the 
day  and  year  aforesaid. 

(Seal.)  (Signature' and  title.) 

375 


§  499.] 


REGISTRATION   AS   AFFECTING   PRIORITY. 


and  devisees,  unless  sncli  instrument  is  recorded  in  the  registry 
■where  the  deed  is  recorded.^ 


499.  Maryland.^  —  A  mortgage  must  be  recorded  within  six 
months  from  its  date  in  the  county  or  city  in  which  the  land  lies. 
When  acknowledged  and  so  recorded  it  takes  effect  as  between 
the  parties  from  its  date ;  otherwise  it  is  not  valid  for  the  purpose 
of  passing  the  title.^  Of  two  or  more  mortgages  of  the  same  land 
that  which  is  first  recorded  according  to  law  is  preferred,  if  made 
in  good  faith  and  upon  good  and  valuable  consideration.^  If  ex- 
ecuted under  a  power  of  attorney,  this  must  be  recorded  at  the 
same  time.^  A  deed  which  by  any  other  instrument  or  writing 
appears  to  have  been  intended  only  as  a  security  in  the  nature  of 


1  Eev.  Stat.  1871,  c.  73,  §§  8,  9. 

2  Maryland.  —  Code,  1860,  art.  24,  §§ 
2-8.  The  acknowledgment  may  be  made 
within  the  state  before  a  justice  of  the  peace, 
a  judge  of  the  orphans'  court,  or  of  any 
circuit  court  of  any  county,  or  before  the 
judge  of  the  superior  court,  court  of  com- 
mon pleas,  or  circuit  court,  for  Baltimore 
city.  The  official  character  of  a  justice  of 
the  peace,  taking  an  acknowledgment  out 
of  the  county  or  city  in  which  the  real 
estate  or  any  part  of  it  lies,  must  be  cer- 
tified to  by  the  clerk  of  the  circuit  or  su- 
perior court  under  his  official  seal. 

An  acknowledgment  out  of  the  state, 
but  -within  the  United  States,  may  be 
made  before  a  notary  public,  a  judge  of 
any  court  of  the  United  States,  a  judge 
of  any  court  of  any  state  or  territory  hav- 
ing a  seal,  or  a  commissioner  of  this  state 
to  take  the  acknowledgment  of  deeds. 

An  acknowledgment  made  without  the 
United  States  may  be  made  before  any 
minister  or  consul  of  the  United  States, 
any  notary  public,  or  a  commissioner  of 
this  state  to  take  acknowledgments. 

Every  officer  taking  an  acknowledgment 
must  make  a  certificate  of  it  and  indorse 
it  itpon  the  deed  or  annex  it  to  it,  and 
when  taken  without  the  state  before  a 
judge  of  any  court  having  a  seal,  the  seal 
of  the  court  should  be  affixed. 

The  certificate  of  acknowledgment  should 
contain  the  name  of  the  person  making  the 

376 


acknowledgment,  the  official  style  of  the 
officer,  the  time  when  it  was  taken,  and  a 
statement  that  the  grantor  acknowledged 
the  deed  to  be  his  act,  or  made  an  acknowl- 
ment  to  like  eifect. 

The  acknowledgment  of  a  married  wo- 
man is  taken  without  separate  examination. 

An  acknowledgment  within  the  state 
may  be  certified  :  — 

State  of  Maryland,  County, 

to    wit:  I    hereby    certify,  that   on    this 
day  of  ,  in  the  year        , 

before  the  subscriber  (here  insert  style  of 
the  officer  taking  the  acknowledgment), 
personally  appeared  (here  insert  the  name 
of  person  making  the  acknowledgment), 
and  acknowledged  the  foregoing  deed  to 
be  his  act. 

The  form  of  an  acknowledgment  taken 
out  of  the  state  should  be  the  same,  with 
the  addition  of:  In  testimony  whereof  I 
have  caused  the  seal  of  the  court  to  be  af- 
fixed (or  have  aflBxed  my  official  seal), 
this  day  of  ,  a.  d. 

Code,  1860,  pp.  144,  145. 

^  If  a  mortgage  is  not  recorded  within 
six  months  from  its  date,  it  is  nevertheless 
an  equitable  lien,  and  has  priority  over 
those  who  were  general  creditors  at  its 
date,  but  not  over  subsequent  creditors. 
Sixth  Ward  Build.  Ass'n  v.  Willson,  41 
Md.  506. 

*  Code,  1860,  art.  24,  §§  13-16. 
6  lb.  §  25. 


REGISTRY   ACTS   OF   THE   SEVERAL   STATES.  [§  500. 

a  mortgage,  though  absolute  in  terms,  is  considered  a  mortgage  ; 
but  the  person  for  whose  benefit  tlie  deed  is  made  can  have  no 
benefit  or  advantage  from  the  recording  of  it,  unless  the  instru- 
ment or  writing  operating  as  a  defeasance,  or  explanatory  of  its 
being  designed  to  have  the  effect  only  of  a  mortgage  or  condi- 
tional deed,  be  also  recorded  with  it.^  Under  this  provision  a 
neglect  to  record  the  defeasance  does  not  annul  and  make  void 
the  deed,  but  the  grantee  loses  thereby  the  benefit  which  the  re- 
cording of  it  would  have  given  him  over  subsequent  purchasers. 
He  derives  no  benefit  from  the  record.^ 

Assignments  of  mortgages  may  be  recorded  in  the  same  man- 
ner as  other  conveyances,  and  the  record  is  made  constructive 
notice. 3  This  act  does  not  affect  equitable  assignments  made  by  a 
transfer  of  the  mortgage  debt.^ 

500.  Massachusetts.^  —  Mortgages  and  other  conveyances  of 
real  estate  must  be  recorded  in  the  registry  of  deeds  for  tlie  county 
or  district  where  the  lands  lie.  The  conveyance  is  not  valid  and 
eflFectual  against  any  person  other  than  the  grantor,  and  his  heirs 
and  devisees,  and  persons  having  actual  notice,  unless  so  recorded.^ 
When  a  deed  purports  to  contain  an  absolute  conveyance  of  any 
estate  in  lands,  but  is  made  or  intended  to  be  made  defeasible  by 
a  deed  of  defeasance,  bond,  or  other  instrument,  for  that  purpose, 
the  original  conveyance  is  not  thereby  defeated  or  affected  as 
against  any  person  other  than  the  maker  of  the  defeasance,  or  his 

1  lb.  art.  64,  §  1.  the    state,  or  a   minister  of   the   United 

2  Owens  V.  Miller,  29  Md.  144.  States,  should  be  appended. 

3  Act  1868,  c.  373.  No  separate  examination  of  wife. 

*  Byles  V.  Tome,  39  Md.  461.  The  following  form  of  certificate  may 

fi  Massachusetts.  —  The  acknowledg-  be  used  for  acknowledgments  taken  out  of 

ment  maybe  made  before  any  justice  of  the  state  :  — 

the  peace   in  this   state;    or   before  any  State  of          ,  County  of          ,  ss.     On 

justice  of  the  peace,  magistrate,  or  notary  this              day  of              i  187  ,  before  rae 

public,  or  commissioner  appointed  for  that  (name  and  title  of  officer),  personally  ap- 

purpose  by  the  governor  of  this  common-  peared                    and                    ,  and  sev- 

wealth,  within   the  United  States,  or  in  erally  acknowledged  the  foregoing  instru- 

any  foreign  country  ;  or  before  a  minister  ment  to  be  their  free  act  and  deed,  before 

or  consul  of  the  United  States  in  any  for-  me. 

eign    country.      Gen.   Stat.  c.   89,  §  19  ;  In  witness  whereof  I  have  hereunto  set 

Stat.  1867,  c.  2.50.     When   taken  out  of  my  hand  and  affixed  my  official  seal  the 

the    state   the   official   character   of   any  day  and  year  aforesaid, 

magistrate  other  than  a  commissioner  of  (Seal.)                 (Signature  and  title.) 

6  Gen.  Stat.  1860,  c.  89,  §§1,3. 
377 


§§  501,  502.]       REGISTRATION    AS    AFFECTING   PRIORITY. 

heirs  or  devisees,  or  persons  having  actual  notice  thereof,  unless  the 
instrument  of  defeasance  is  recorded  in  the  registry  of  deeds  for  the 
county  or  district  where  the  lands  lie.^  The  instrument  of  defea- 
sance has  full  effect  between  the  parties  without  being  recorded.^ 

501.  Michigan.^  —  Mortgages  are  recorded  in  the  office  of  the 
register  of  deeds  of  the  county  whei-e  the  land  lies.  They  are 
entered  in  separate  books  kept  for  that  purpose.  If  not  recorded 
they  are  void  against  any  subsequent  purchaser  in  good  faith  and 
for  a  valuable  consideration,  whose  conveyance  shall  be  first  duly 
recorded.  A  deed  absolute  in  terms,  but  intended  to  be  made 
defeasible  by  force  of  a  deed  of  defeasance  or  other  instrument 
for  that  purpose,  is  not  defeated  or  affected  thereby,  as  against 
any  person  other  than  the  maker,  his  heirs  or  devisees,  or  persons 
having  actual  notice,  unless  the  defeasance  is  recorded.* 


502.    Minnesota.^  —  Mortgages  must  be  recorded  in  the  office 


1  lb.  §  15.  It  would  seem  that  the  in- 
strument of  defeasance  need  not  be  ac- 
knowledged before  being  recorded.  Stet- 
son V.  Gulliver,  2  Gush.  494,  497  ;  but  see 
Dole  V.  Thurlow,  12  Met.  157,  163,  per 
Shaw,  C.  J. 

2  Bay  ley  v.  Bailey,  5  Gray,  505,  510. 

3  Michigan.  —  Within  the  state  the  ac- 
knowledgment may  be  before  any  judge 
or  commissioner  of  a  court  of  record, 
notary  ]iul)lic,  or  master  in  chancery,  and 
a  certificate  indorsed  on  the  deed.  When 
executed  in  any  other  state,  territory,  or 
district  of  the  United  States,  the  execution 
may  be  according  to  the  laws  of  such 
state,  territory,  or  district,  and  acknowl- 
edged before  any  judge  of  a  court  of  rec- 
ord, notary  public,  justice  of  the  peace, 
master  in  chancery,  or  other  officer  there 
authorized  to  take  the  acknowledgment 
of  deeds,  or  before  any  commissioner  ap- 
pointed by  the  governor  of  this  state  for 
such  purpose.  Compiled  Laws,  1871,  p. 
1342,  §§  8  &  9.  Unless  taken  before  such 
coinmissioucr,  there  must  be  attached  to 
the  deed  a  certificate  of  the  clerk  of  a 
court  of  record  of  the  county  or  district, 
or  of  the  secretary  of  state  of  the  state  or 
territory,  under  seal,  that  the  person  whose 

378 


name  is  subscribed  to  the  certificate  was,  at 
the  date  thereof,  such  officer  as  he  is  therein 
represented  to  be,  that  he  believes  the  signa- 
ture of  such  person  to  be  genuine,  and  that 
the  deed  is  executed  according  to  the  laws 
of  such  state,  territory,  or  district.  Laws 
1875,  p.  259.  A  deed  executed  in  a  for- 
eign country  may  be  executed  according 
to  the  laws  of  that  country,  and  acknowl- 
edged before  any  notary  public,  or  any 
diplomatic  officer,  commissioner,  or  consul 
of  the  United  States  appointed  to  reside 
there;  which  acknowledgment  must  be 
certified  by  the  officer  under  his  hand,  and 
if  taken  before  a  notary  public,  his  seal  of 
office  must  be  affixed. 

When  a  married  woman  within  the 
state  joins  in  the  deed,  her  acknowledg- 
ment is  to  be  taken  separately  from  her 
husband,  to  the  effect  that  she  executed 
the  deed  freely,  and  without  any  fear  or 
compulsion.  A  deed  executed  by  a  marrie4 
woman  residing  out  of  the  state  has  the 
same  effect  as  if  she  were  sole,  and  may  be 
acknowledged  in  the  same  way.  lb.  p. 
1343. 

4  Compiled  Laws,  1871,  pp.  1345,  1346. 

^  Minnesota.  —  Acknowledgments  in 
the   state  must  be  made  before  a  judge  of 


REGISTRY   ACTS    OF   THE   SEVERAL    STATES. 


[§  503. 


of  the  register  of  deeds  of  the  county  where  the  land  is  situated  ; 
and  if  not  so  recorded  are  void,  as  against  any  subsequent  pur- 
chaser in  good  faith  and  for  a  valuable  consideration,  whose  con- 
veyance is  iirst  duly  recorded,  or  as  against  any  attachment  or 
judgment  obtained  at  the  suit  of  any  person  against  the  person  in 
whose  name  the  title  to  the  land  appears  of  record.  When  a  deed 
purports  to  be  an  absolute  conveyance  in  terms,  but  is  made  or  in- 
tended to  be  made  defeasible  by  force  of  a  deed  of  defeasance  or 
other  instrument  for  that  purpose,  the  original  conveyance  is  not 
defeated  or  affected  as  against  any  person  other  than  the  maker 
of  the  defeasance,  or  his  heirs  or  devisees,  or  persons  having  actual 
notice,  unless  the  instrument  of  defeasance  is  recorded.^ 


603.  Mississippi.^  —  Deeds  of  trust  and    mortgages  are  void 

the   sti])rcnie,  district,  or  probate  court,  or  this            day  of            ,  a.  d.  187  ,  before  . 
a  clerk  of  said  courts,  or  before  a  notary  me  personally  appeared          ,  to  me  known 
public,  justice   of  the   peace,  register   of  to  be  the  persons  described  in  and  who  ex- 
deeds,  court  commissioner,  or  county  au-  ecuted  the  forej,^oing  instrument,  and  ac- 
ditor,  and  when  such  officer  has  a  seal  of  knowledged  that  they  executed  the  same 
office   this  must  be   affixed.     Laws  1876,  freely  and  voluntarily,  for   the  uses  and 
p.  59.     Elsewhere  in    the  United    States  purposes  therein  expressed. 
they  may  be   taken   before   any  justice  of  Witness  my  hand  and  official  seal  the 
the   supreme  court  of  the  United  States,  day  and  year  before  written, 
judges  of  the  district  courts  of  the  United  (Signature  and  title.) 
States,  the  judges   or  justices  of  the  su-  ^  Revision,  1866,  pp.  330,331. 
preme,  superior,  circuit,  or  other  court  of  ^  Mississippi.  —  Acknowledgments  in 
record  of  any  state,  territory,  or  district;  the  state  may  be  made  before  any  judge  of 
or  before  the  clerks  of  these  several  courts ;  the  supreme  or  circuit  court,  any  chancel- 
or   before  justices  of  the  peace,  notaries  lor,  any  clerk  of  a  court  of  record,  who 
public,  or  commissioners  appointed  by  the  shall  certify  the  same  under  the  seal  of 
governor  of  this  state  for  such  purpose  ;  his  office ;  or  any  justice  of  the  peace,  or 
but  when  taken  before  an  officer  not  hav-  member    of    the    board    of    supervisors, 
ing  a  seal  of  office,  a  certificate  of  his  of-  whether  the  lands  be  within  his  county  or 
ficial  character  should  be  annexed.    Laws,  not.     In    another  state,   the  acknowledg- 
1868,  p.  100  ;  1869,  p.  79.  ment  may  be  before  any  of  the  justices  of 

An  acknowledgment  in  a  foreign  coun-  the  supreme  court  of  the  United  States, 

try  may  be  taken  according  to  the  laws  of  or  a  district  judge  of  the  United  States, 

the  country  before  any  notary  public,  or  di-  or  justices  of  the  supreme  court  or  supe- 

plomatic  officer,  commis>ioner,  or  consul  rior  court  of  any  state  or  territory  of  the 

of  the  United  States  resident  therein.     If  Union ;  or  any  justice  of  the  peace,  whose 

before  a   notary   public,   his   official   seal  official  character  shall  be  certified  under 

must   be   annexed.     Laws  1868,    p.    104,  the   seal  of  some  court  of  record  in  his 

and  c.  40,  §  10  Gen.  Stat.  county  ;  or   before  any   comnii-sioner   of 

No  separate   acknowledgment   by  wife  this  state  appointed  for  the  purpose,  or 

required.  before  any  notary  public  or   clerk  of  a 

Form  of  certificate  by  husband  and  wife :  court  of  rccoid  having  a  seal  of  office. 

State  of          ,  County  of         ,  ss.     On  The  wife  must  be  examined  privately 

379 


§  504.] 


REGISTRATION   AS   AFFECTING   PRIORITY. 


as  to  all  creditors  and  subsequent  purchasers,  for  valuable  con- 
sideration without  notice,  unless  they  are  acknowledged  or  proved, 
and  lodged  with  the  clerk  of  the  Chancery  Court  of  the  county 
in  which  the  lands  are  situate,  to  be  recorded  ;  but  as  between 
the  parties  and  their  heirs,  and  as  to  all  subsequent  purchasers 
with  notice,  or  without  valuable  consideration,  they  are,  never- 
theless, valid  and  binding.  Deeds  of  trust  and  mortgages  take 
effect  and  are  valid  only  from  the  time  they  are  delivered  to 
the  clerk  to  be  recorded  ;  though  other  conveyances,  if  so  deliv- 
ered within  three  months  after  execution,  take  effect  from  the 
date  of  their  execution.^ 

All  instruments  conveying  both  real  estate  and  personal  prop- 
erty, as  growing  crops,  must  be  recorded  in  the  regular  deed 
books  of  the  proper  county,  and  also  in  a  chattel  deed  book.^ 


504.  Missouri.^ — Mortgages  must  be  recorded  in  the  office 


and  apart  from  her  husband.  Kev.  Code, 
1871,  p.  505,  506. 

Form  of  certificate  adopted  from  statute 
form.     lb.   p.    505  ;  — 

State   of  ,  County  of  ,  ss. 

Personally  appeared  before  me  (name  and 
title   of  officer),  the  within  named 
and  his  wife,  who  acknowledged  that 

they  signed,  sealed,  and  delivered  the  fore- 
going deed ;  and  the  said  wife  of 
said  ,  on  a  private  examination  apart 
from  her  said  husband,  acknowledged  that 
she  signed,  sealed,  and  delivered  the  fore- 
going deed,  as  her  voluntary  act  and  deed 
freely,  without  any  fear,  threats,  or  com- 
pulsion of  her  said  husband,  on  the  day 
and  year  therein  mentioned. 

Given  under  my  hand  and  seal  this 
day  of  ,  A.  D.  187  . 

(Signature  and  title.) 

1  Eev.  Code,  1871,  p.  503. 

2  Laws  1876,  p.  100. 

3  Missouri.  — Acknowledgments  in  the 
state  may  be  before  a  court  having  a  seal, 
or  some  judge,  justice,  or  clerk  thereof, 
notary  public,  or  justice  of  the  peace  of  the 
county  where  the  estate  lies ;  out  of  the 
state,  before  a  commissioner  of  the  state, 
notary  public,  court  of  record  of  the  United 
States,  or  of  any  state  or  territory  having 

380 


a  seal,  or  clerk  of  any  such  court ;  and  if 
in  a  foreign  country,  Jjefore  any  court  of 
any  state,  kingdom,  or  empire,  having  a 
seal,  or  the  mayor  or  chief  officer  of  any 
city  or  town  having  an  official  seal,  or  be- 
fore a  minister  or  consul  of  the  United 
States,  or  a  notary  public  having  a  seal. 
Gen.  Stat.  444,  445  ;  Wagner's  Stat.  1872, 
p.  274.  A  notary  public  within  the  state 
must,  in  his  certificate,  state  when  he  was 
qualified  and  when  his  certificate  will  ex- 
pire. 

Form  of  certificate  by  husband  and  wife 
(see  statute  form,  Wagner's  Stat.  p.  1418) : 

State  of  ,  County  of         ,  ss.      On 

this         day  of  ,A.  D.         ,  before  me 

(name  and  title),  duly  commissioned  and 
qualified,   came  and  his  wife, 

who  are  personally  known  to  me  (who 
were  proven  before  me  hy  the  testimony 
on  oath  of  ,  residing  at  ,  and 

,  residing  at  ,  two  good  and 

credible  witnesses)  to  be  the  same  persons 
whose  names  are  subscribed  to  the  forego- 
ing instrument  of  writing  as  parties  there- 
to, and  they  acknowledged  the  same  to  be 
their  act  and  deed  for  the  purposes  there- 
in mentioned  ;  and  she  the  said  ,  wife 
of  said  ,  having  been  by  me  first  made 
acquainted  with  the  contents  of  said  in- 


REGISTRY  ACTS  OF  THE  SEVERAL  STATES. 


[§  505. 


of  tlie  recorder  of  the  county  in  which  the  real  estate  is  situated. 
From  the  time  of  filing  with  the  recorder  for  record,  the  instru- 
ment imparts  notice  to  all  persons  of  its  contents.  Until  so  de- 
posited it  is  not  valid,  except  between  the  parties,  and  as  to  such 
as  have  actual  notice.^ 

505.  Montana  Territory .^  —  Mortgages  and  other  conveyances 
are  recorded  in  the  office  of  the  recorder  of  the  county  where  the 
real  estate  is  situated,  but  are  valid  and  binding  between  the  par- 
ties without  such  record.  Every  such  recorded  instrument,  from 
the  time  of  filing  the  same  for  record,  imparts  notice  to  all  persons 

strument,  acknowledged  upon  an  exami-  the  officer  or  of  the  court,  except  in  case  of 
nation  separate  and  apart  from  her  said  a  justice  of  the  peace,  whose  official  char- 
husband,  tliat  she  executed  said  instrument  acter  must  be  certified  under  tlie  seal  of 
and  relinquished  her  dower  in  the  real  es-  the  court  or  officer  within  the  county  hav- 
state  therein  conveyed  freely,  and  without  ing  cognizance  of  his  official  character, 
compulsion  or  undue  influence  on  the  part  Laws  1872,  p.  397,  and  Laws  187G,  p.  116, 
of  her  husband.  §§  5,  6. 

In  witness  whereof  I  have  hereto  set  my        Form  of  certificate  given  by  statute,  lb. 

hand  and  official  seal  the  day  and  year  last  p.  398  :  — 

above  written.  State  of  ,  County  of  ,  ss. 

(Signature  and  title.)  On  this  day  of  ,  a.  d.  18     , 

The  certificate  is  the  same  in  case  the  personally  appeared  before  me  (name  and 

land  is  the  separate  property  of  the  wife,  title),  in  and  for  said  count}',  A.  B.,  person- 

except  that  the  words  "  and  relinquished  ally  known  to  me  (satisfactorily  proved  to 

her  dower  "  are  omitted.  me  by  the  oath  of  C.  D.,  a  competent  and 

1  Wagner's  Stat.  1872,  p.  277.  credible  witness,  for   that  purpose  by  me 

2  Montana  Territory.  —  Acknowl-  duly  sworn)  to  be  the  person  described  in, 
edgments  within  the  territory  may  be  taken  and  who  executed  the  foregoing  instru- 
by  some  judge  or  clerk  of  a  court  having  ment,  and  who  acknowledged  to  me  that 
a  seal,  or  by  some  notary  public,  or  justice  he  executed  the  same  freely  and  volunta- 
of  the  peace.  The  certificate  of  the  judge  rily,  and  for  the  uses  and  purposes  therein 
or  clerk  of  court  must  be  under  the  seal  mentioned. 

of  court,  and  of  the  notary  under  his  offi-  The  certificate  of  acknowledgment  by  a 

cial  seal ;  and  if  the  property  is  not  in  the  married  woman  should  set  forth  that  such 

county  for  which  the  justice  of  the  peace  married  woman  was  personally  known  to 

is  an  officer,  his  official  character  must  be  the  officer  to  be  the  person  whose  name  is 

certified  to  under  the  hand  and  official  seal  subscribed,  or  was  proved  to  be  such  by  a 

of  the  county  clerk  of  the  county  where  credible  witness,  whose  name  must  be  in- 

Ihe  justice  acts.     Elsewhere  in  the  United  serted,  and  "  that  she  was  made  acquainted 

States  the  acknowledgment  may  be  before  with  the  contents  of  such  conveyance,  and 

some  judge  or  clerk  of  any  court  of  the  acknowledged,  on  examination  apart  from 

United  States,  or  of  any  state  or  territory  and  without  the  hearing  of  her  husband, 

having  a  seal,  or  by  a  notary  public,  or  a  that  she  executed  the  same  freely  and  vol- 

justice  of   the  peace,  or  by  any  commis-  untarily,  without  fear  or  compulsion,  or 


sioner  appointed  by  the  governor  of  the 
territory  for  that  purpose.  The  certificate 
must  be  under  the  hand  and  official  seal  of 


undue  influence  of  her  husband,  and  that 
she  does  n3t  wish  to  retract  the  execution 
of  the  same."    lb.  p.  400. 

381 


§§  506-507.]      REGISTRATION   AS   AFFECTING   PRIORITY. 

of  its  contents,  and  subsequent  purchasers  and  mortgagees  are 
deemed  to  purchase  and  take  with  notice.  If  not  so  recorded,  it  is 
void  as  against  any  subsequent  purchaser  in  good  faith  and  for  a 
valuable  consideration,  whose  own  conveyance  is  first  recorded.^ 

506.  Nebraska.^  —  Mortgages  are  recorded  with  the  county 
clerks,  who  are  registers  of  deeds,  in  the  county  in  which  the 
real  estate  or  any  part  of  it  is  situate  ;  but  in  case  the  county 
is  not  organized,  then  in  the  county  to  which  it  is  attached  for 
judicial  purposes.  Mortgages  and  absolute  deeds,  intended  to 
operate  as  such,  must  be  recorded  in  books  kept  for  the  purpose.^ 
The  deed  is  considered  as  recorded  from  the  time  it  is  delivered  to 
the  clerk  for  that  purpose  ;  and  takes  effect  from  that  time,  and 
not  before,  as  to  all  creditors  and  subsequent  purchasers  in  good 
faith  without  notice  ;  but  as  between  the  parties  is  valid  without 
record.^  A  deed  which  appears  by  any  other  instrument  in  writ- 
ing to  be  intended  only  as  a  security  in  the  nature  of  a  mort- 
gage, though  absolute  in  terms,  is  considered  as  a  mortgage  ;  but 
the  person  for  whose  benefit  such  deed  is  made  shall  not  derive 
any  advantage  from  the  recording  of  it,  unless  every  writing 
operating  as  a  defeasance  of  the  same,  or  explanatory  of  its  being 
designed  to  have  the  effect  only  of  a  mortgage  or  conditional  deed, 
be  also  recorded  therewith  and  at  the  same  time.^ 

507.  Nevada.*^  —  A  mortgage,  to  operate  as  notice  to  third 

^  Laws  1872,  pp.  400,  401.  genuineness  of  his  signature,  and  that  the 
2  Nebraska.  —  Acknowledgments  may  execution  and  acknowledgment  are  ac- 
he made  in  the  state  before  a  judge  or  cording  to  the  laws  of  such  state,  district, 
clerk  of  anj'  court,  or  some  justice  of  the  or  territory,  must  be  annexed.  In  a  for- 
peace,  or  notary  public;  but  the  officer  eign  country  a  deed  may  be  executed  and 
cannot  act  out  of  his  jurisdiction  ;  else-  acknowledged  according  to  the  laws  of 
where  in  the  United  States  it  may  be  made  such  country,  before  any  notarj-  public, 
according  to  the  laws  of  the  state,  territory  or  any  diplomatic  officer  or  consul  of  the 
or  district  where  the  act  is  done,  before  any  United  States  appointed  to  reside  therein; 
officer  authorized  to  do  so  by  the  laws  of  but  when  taken  before  a  notary  public  his 
such  state,  territory,  or  district,  or  before  a  seal  of  office  must  be  affixed.  Gen.  Stat, 
commissioner  appointed  by  the  governor  1873,  c.  61,  §§  1-13.  No  separate  exam- 
of  this  state  for  that  purpose.  If  the  offi-  ination  of  wife  is  required, 
cer  uses  an  official  seal,  the  instrument  ^  Gen,  Stat.  1873,  c.  13,  §  44,  48. 
may  be  recorded  without  further  authenti-  "  lb.  c.  61,  §§  15,  16. 
cation  ;  in  other  cases,  a  certificate  of  the  ^  lb.  c.  61  §  25. 

clerk  of  a  court  of  record  or  other  certify-  ^  Nevada.  —  Acknowledgments  in  the 

ing  officer  of  the  county,  district,  or  state,  slate  may  be  made   before  some  judge  or 

as  to  the  official  character  of  the  officer,  the  clerk  of  a  court  having  a  seal,  or  some  no- 

382 


REGISTRY  ACTS  OF  THE  SEVERAL  STATES. 


L§  508. 


persons,  must  be  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  the  real  estate  is  situated,  but  is  valid  and  bind- 
ing between  the  parties  without  such  record.  From  the  time  of 
filing  for  record,  it  imparts  notice  to  all  persons  of  its  contents. 
Subsequent  purchasers  and  mortgagees  have  constructive  notice 
of  all  properly  recorded  conveyances. 

608.  New  Hampshire.^  —  Mortgages  and  other  conveyances 
are  recorded  in  the  registry  of  deeds  in  the  county  in  which 
the  lands  lie.  A  deed  maybe  recorded  though  not  acknowledged, 
and  for  sixty  days  after  such  recording  it  is  as  effectual  as  if 
duly  acknowledged.^ 

Ever}^  conveyance  of  lands,  made  for  the  purpose  of  securing 
the   payment  of  money  or   the  performance  of  any  other  thing 


tary  public,  or  justice  of  the  peace  ;  else- 
where in  the  United  States,  before  a  judge 
or  clerk  of  a  court  of  the  United  States,  or 
of  anj'  state  or  territory,  having  a  seal,  or 
some  notary  public  or  justice  of  the  peace, 
or  by  a  commissioner  appointed  by  the 
governor  of  this  state  for  that  purpose  ; 
but  when  taken  before  a  justice  of  the 
peace,  it  must  be  accompanied  by  the  cer- 
tificate of  the  clerk  of  a  court  of  record  of 
the  county  having  a  seal,  showing  his  offi- 
cial character  and  the  genuineness  of  his 
signature-  Out  of  the  United  States  it 
must  be  taken  before  some  judge,  or  clerk 
of  a  court  of  a  state,  kingdom,  or  empire, 
having  a  seal,  or  a  notary  public  therein, 
or  by  a  minister,  commissioner,  or  consul 
of  the  United  States  appointed  to  reside 
therein.     Compiled  Laws,  1873,  §  231. 

The  form  of  certificate  for  husband  and 
wife  is  substantially  the  same  as  that  used 
in  California.  The  substance  of  the  cer- 
tificate is  prescribed,  §§  250,  251.  Dower 
and  curtesy  are  both  abolished.  In  con- 
veying hi^r  separate  property  a  married 
woman  must  acknowledge  upon  a  separate 
examination. 

The  ordinary  form  of  certificate  is  pre- 
scribed by  statute,  §  236  :  — 

State  of  ,  County  of         ,  on  this 

day  of  ,A.  D.  ,  personally 

appeared  before  me  (name  and  title),  in 


and  for  said  county  ,  known  to  me  to 

be  the  person  described  in  and  who  exe- 
cuted the  foregoing  instrument,  who  ac- 
knowledged to  me  that  he  executed  the 
same  freely  and  voluntarily,  and  for  the 
uses  and  purposes  therein  mentioned. 

1  Compiled  Laws,  1873,  §§  252,  254. 
Grellett  v.  Heilshorn,  4  Nev.  526. 

2  New  Hampshire.  —  Acknowledg- 
ments, whether  within  or  without  the  state, 
may  be  made  before  a  justice,  notary  pub- 
lic, or  commissioner;  but  when  before  a  jus- 
tice without  the  state,  his  official  character 
should  be  authenticated  by  the  clerk  of  a 
court  of  record  or  secretary  of  state.  They 
may  also  be  taken  before  a  minister  or 
consul  of  the  United  States  in  a  foreign 
country.  Gen.  Stat.  1867,  p.  251.  No 
separate  acknowledgment  of  the  wife  re- 
quired, or  examination  apart  from  her  bus- 
band.  She  should  acknowledge  with  the 
husband. 

Form  of  certificate :  — 
State  of  ,  County  of  , 

ss.     Personally  appeared  the  above  named 
and  his   wife,   and   ac- 

knowledged the  foregoing  instrument  to 
be  their  voluntary  act  and  deed.  Before 
me  this  day  of  ,  187  . 

(Signature  and  seal.) 

3  Gen.  Stat.  1867,  c.  121,  §§  1-7. 

383 


§  509.] 


REGISTRATION    AS    AFFECTING   PRIORITY. 


stated  in  tlie  condition  of  it,  is  a  mortgage ;  but  the  conveyance 
cannot  be  defeated,  or  the  estate  incumbered,  by  any  agreement, 
unless  it  is  inserted  in  the  condition  of  the  conveyance,  and  made 
part  of  it,  and  tlie  condition  must  state  the  sum  of  money  se- 
cured, or  other  thing  to  be  performed.^ 

509.  New  Jersey. 2 — Mortgages  are  recorded  in  the  office  of 
the  clerk  of  the  Court  of  Common  Pleas  for  the  county  in  which 
the  lands  lie.  If  any  deed  be  expressed  in  absolute  and  uncondi- 
tional terms,  but  it  appears  by  any  other  writing  to  have  been 
intended  by  way  of  a  mortgage,  the  deed  is  considered  and  regis- 
tered as  such  ;  but  the  grantee  is  not  entitled  to  the  benefits  and 
advantages  given  by  means  of  the  record  to  a  mortgagee,  unless 
an  abstract  of  the  writing,  operating  as  a  defeasance  of  the  deed, 
or  explanatory  of  the  intention  of  the  parties,  that  it  should  have 
the  effect  of  a  mortgage,  be  also  registered  with  it.^ 

A  mortgage  has  no  effect  against  a  subsequent  judgment  cred- 
itor, or  bond  fide  purchaser,  or  mortgagee,  for  a  valuable  considera- 


1  lb.  ch.  122,  §§1,2. 

2  New  Jersey.  —  Acknowledgments 
within  the  state  are  made  before  a  chan- 
cellor, or  a  justice  of  the  supreme  court, 
a  master  in  chancery,  a  judge  of  the  court 
of  common  pleas,  or  a  commissioner  of 
deeds  ;  out  of  the  state,  before  a  judge  of 
United  States,  supreme,  or  district  coiirts, 
chancellor  of  state  or  territory  where  taken, 
judge  of  supreme,  superior,  circuit,  or 
district  court  of  the  state,  none  of  whom 
are  required  to  affix  a  seal ;  a  mayor  or 
other  chief  magistrate  of  a  city,  under  the 
seal  of  the  city ;  a  master  in  chancery  of 
New  Jersey,  a  commissioner  of  deeds  for 
the  state  residing  in  another  state  or  ter- 
ritory, under  his  seal ;  a  judge  of  the  court 
of  common  pleas,  or  before  any  judge  of 
any  court  of  record,  or  any  officer  author- 
zed  by  the  laws  of  said  state  or  territory 
to  take  acknowledgments  of  deeds  in  such 
£t.ate  or  territory ;  but  when  taken  before 
such  common  pleas,  or  such  judge  of  a 
court  of  record,  or  other  officer,  there  shall 
be  annexed  a  certificate  under  the  great 
seal  of  the  state  or  territory,  or  under  the 
seal  of  the  court  of  the  county,  of  the  of- 

384 


ficial  character  of  the  officer,  that  he  was 
authorized  to  take  acknowledgments,  and 
of  the  genuineness  of  his  signature.  The 
acknowledgment  may  be  taken  before  any 
officer  in  another  state,  or  in  any  territory, 
who  is  authorized  by  the  laws  thereof  to 
take  acknowledgments  for  such  state  or 
territory  ;  but  a  certificate  under  the  seal 
of  the  state  or  territory;  or  under  the  seal 
of  some  court  of  record,  that  such  officer 
was  at  the  time  authorized  by  lavv  to  take 
acknowledgments  must  be  annexed.  Laws 
1876,  p.  71.  In  a  foreign  country,  they 
may  be  taken  before  any  court  of  law, 
mayor,  or  other  chief  magistrate  of  any 
city,  borough,  or  corporation,  certified  in 
the  manner  such  acts  are  usually  authen- 
ticated ;  or  before  any  diplomatic  officer  of 
the  United  States,  any  consul,  or  vice-con- 
sul, certified  under  his  seal.  Nixon's  Dig. 
1868,  p.  144  et  seq. 

An  examination  of  the  wife  separate 
from  the  husband  is  necessary. 

3  Nixon's  Dig.  1868,  pp.  147,  611. 
And  see  Den  v.  Wade,  20  N.  J.  L.  (1 
Spen.)  291. 


REGISTRY    ACTS    OF   THE   SEVERAL   STATES.       [§§  510,  511. 


tion  without  notice,  unless  so  recorded  at  or  before  the  time  of 
such  judgment,  or  of  lodging  with  the  clerk  for  record  of  such 
subsequent  mortgage  or  conveyance.  As  between  the  parties  the 
mortgage  is  valid  and  operative  without  record. 

510.  New  Mexico  Territory. ^  —  Conveyances  of  real  estate 
are  registered  in  the  office  of  the  archives  of  the  county  in  which 
the  land  lies.  The  persons  making  such  instruments,  after  having 
signed,  certified,  and  registered  them,  must  give  notice  of  the  time 
of  registration  in  the  office  of  the  register  to  all  persons  men- 
tioned in  the  conveyance  ;  and  all  purchasers  and  mortgagors  are 
considered  in  law  and  equity  to  have  purchased  under  such  notice. 
The  deed  is  not  valid  except  to  the  parties  interested,  and  those 
who  have  actual  notice  of  the  same,  until  it  is  deposited  in  the 
office  of  the  clerk  of  the  office  to  be  registered.'^ 

511.  New  York.3  —  Mortgages  and  other  conveyances  of  real 


1  New  Mexico  Territory. — Acknowl- 
edgments in  the  territory  may  be  made  be- 
fore any  judge,  justice  of  the  peace,  notary 
public  having  a  seal,  or  clerk  of  a  court 
having  a  seal;  elsewhere  in  the  United 
States,  before  any  United  States  court,  a 
court  of  any  state  or  territory  having  a 
seal,  or  the  clerk  or  judge  of  any  such 
court,  the  genuineness  of  the  signature 
and  official  character  of  the  judge  being 
certified  under  the  seal  of  the  court  by  its 
clerk.  Out  of  the  United  States  it  may 
be  made  before  any  court  of  any  state, 
kingdom,  or  empire,  having  a  seal,  or  be- 
fore the  magistrate  or  supreme  power  of 
any  city  having  a  seal,  before  any  court  of 
record  having  a  seal,  before  any  notary 
public  having  a  seal,  any  consul  or  vice- 
consul  of  the  United  States  having  a  seal, 
or  before  the  judge  of  any  court  of  record 
having  a  seal,  his  official  character  and  the 
genuineness  of  his  signature  being  certi- 
fied bv  some  officer  having  a  seal  of  office. 
Compiled  Laws,  1865,  p.  282  ;  Acts  1874, 
p.  32. 

There  is  no  dower.  In  a  conveyance  of 
the  wife's  separate  property  the  husband 
must  join,  and  the  wife's  aci<nowledgment 
vox..  I.  25 


must  be  separate  and  apart  from  her  hus- 
band. 

Form  of  certificate  by  husband  and 
wife  :  — 

State  of  ,  County  of  ,  ss.     On 

this  day  of  ,a.  d.  187  ,  before 

me,  the  undersigned,  personally 

came  and  his  wife,  to  me  per- 

sonally known  to  be  the  same  persons 
whose  names  are  signed  to  and  who  are 
parties  to  the  within  deed,  and  acknowl- 
edged that  they  signed,  sealed,  and  exe- 
cuted the  same  freely  and  voluntarily  for 
the  purposes  therein  mentioned  ;  and  the 
said  being  by  me  first  informed  of 

the  contents  of  said  deed,  confessed,  on  an 
examination  separate  and  apart  from  and 
independent  of  her  said  husband,  that  she 
signed,  sealed,  and  executed  the  same  freely 
and  voluntarily,  for  the  purposes  therein 
mentioned,  without  any  compulsion  or  the 
illicit  influence  of  her  said  husband. 

Given  under  my  hand  and  official  seal 
this  day  and  year  last  above  written. 

(Seal.)  (Signature  and  title.) 

2  Compiled  Laws,  1865,  c.  44. 

8  New  York.  —  Acknowledgments  may 
be  made  before  judges  of  courts  of  rec- 

385 


§  511-] 


REGISTRATION   AS   AFFECTING   PRIORITY. 


estate  are  recorded  in  the  office  of  the  clerk  of  the  county  where 
the  real  estate  is  situated ;  or  in  New  York,  and  some  other  coun- 
ties, in  the  office  of  the  register  ;  and  every  such  conveyance  not 
so  recorded  is  void  as  against  a  subsequent  purchaser,  in  good 
faith  and  for  a  valuable  consideration,  whose  conveyance  is  first 
duly  recorded.  Separate  books  are  kept  in  which  all  mortgages 
and  all  conveyances  absolute  in  terms,  but  intended  as  mortgages, 
are  recorded. 

Every  deed  which  appears  to  have  been  intended  only  as  a 
security  in  the  nature  of  a  mortgage,  though  absolute  in  terms,  is 
considered  a  mortgage  ;  but  the  person  for  whose  benefit  the  deed 
is  made  can  derive  no  advantage  from  the  record  of  it,  unless 
every  writing  operating  as  a  defeasance  of  the  same,  or  explana- 
tory of  its  being  designed  to  have  the  effect  only  of  a  mortgage 
or  conditional  deed,  be  also  recorded  therewith,  and  at  the  same 
time.^ 


ord  within  their  jurisdictions  respectively, 
county  judges,  surrogates,  notaries  pub- 
lic, and  justices  of  the  peace,  at  a  place 
within  their  respective  counties ;  mayors, 
recorders,  and  commissioners  of  deeds  of 
cities,  within  their  respective  cities.  With- 
out the  state,  before  judges  of  United 
States  courts,  judges  of  the  supreme,  cir- 
cuit, or  superior  court  of  any  other  state 
or  territory,  at  a  place  within  the  jurisdic- 
tion of  their  courts;  before  the  mayor  of 
any  city,  or  a  New  York  commissioner, 
provided  the  certificate  of  such  commis- 
sioner is  accompanied  by  the  certificate  of 
the  secretary  of  state  of  New  York,  attest- 
ing the  existence  of  the  officer,  and  the 
genuineness  of  his  signature.  Commis- 
sioners should  state  in  their  certificate 
the  day  on  which,  and  the  city,  town,  and 
county  within  which  the  proof  or  acknowl- 
edgment is  taken.  It  may  also  be  taken 
before  any  ofiicer  of  any  state  or  territory 
of  the  United  States  authorized  by  the  laws 
thereof  to  take  proof  or  acknowledgment, 
but  the  officer  must  have  satisfactory  evi- 
dence that  the  person  making  it  is  the  in- 
dividual described  in  and  who  executed 
the  instrument,  and  he  must  attach  a  cer- 
tificate of  his  official  character  and  of  the 

386 


genuineness  of  his  signature,  by  a  clerk  of 
a  court  for  the  county. 

Acknowledgments  in  foreign  countries 
may  be  made  before  any  consul,  vice-consul, 
deputy  consul,  consular  agent,  vice-consu- 
lar agent,  or  commercial  agent,  of  the 
United  States,  and  certified  under  his  seal 
of  office.  See  Fay's  Dig.  of  Laws,  1874, 
vol.  1,  pp.  .581,  583,  586,  587. 

The  execution  of  a  deed  within  the  state 
by  a  married  woman  should  be  acknowl- 
edged by  her  on  a  private  examination ;  but 
when  executed  by  a  non-resident  a  private 
examination  is  not  necessary.    lb.  581. 

Form  of  certificate  :  — 

State  of  ,  County  of        ,  ss.     On 

this  day  of  ,  in  the  year  187  , 

before  me  personally  came  and 

his  wife,  to  me  known  to  be  the  individ- 
uals described  in,  and  who  executed  the 
within  conveyance,  and  severally  acknowl- 
edged that  they  executed  the  same  for  the 
purposes  therein  mentioned.  And  the  said 
,  on  a  private  examination  by  me 
made  apart  from  her  husband,  acknowl- 
edged that  she  executed  the  same  freely 
and  without  any  fear  or  compulsion  of  her 
said  husband.  (Signature  and  title.) 

1  Fay's  Dig.  of  Laws,  1876,  vol.  1,  p. 
580. 


REGISTRY   ACTS   OF  THE   SEVERAL   STATES.      [§§  512,  513. 

512.  North  Carolina.^ —  No  deed  of  trust  or  mortgage  for  real 
estate  is  valid  at  law  to  pass  any  property  as  against  creditors  or 
purchasers  for  a  valuable  consideration  from  the  donor,  bargainor, 
or  mortgagor,  but  from  the  registration  of  such  deed  of  trust  or 
mortgage  in  the  county  where  the  land  lies.^  Under  this  provi- 
sion it  is  held  that  no  notice,  however  formal  and  complete,  can 
supply  the  place  of  registration.  A  deed  of  trust  or  mortgage  is 
of  no  validity  whatever,  either  in  law  or  equity,  as  against  pur- 
chasers for  value  and  creditors,  until  duly  registered.  They  take 
effect  only  from  and  after  the  registration.^ 

513.  Ohio.*  —  Mortgages  are  recorded  in  the  office  of  the  re- 


1  North  Carolina.  —  The  justices  of 
the  supreme  court,  the  clerks  of  the  su- 
perior court,  and  notaries  public,  may  take 
acknowledgments  and  probates  within  the 
state.  The  wife  must  be  examined  sep- 
arate from  her  husband  in  all  deeds  exe- 
cuted to  bar  her  dower,  or  to  convey  her 
separate  estate.  Out  of  the  state  a  com- 
missioner of  affidavits  appointed  by  the 
governor  of  the  state  may  take  acknowl- 
edgments, and  they  may  be  taken  before 
a  commissioner  appointed  by  the  probate 
judge  for  the  special  case.  Beyond  the  lim- 
its of  the  United  Stiates  they  may  be  taken 
before  the  chief  magistrate  of  any  city  in 
the  county  where  the  grantor  is  ;  or  before 
any  ambassador,  minister,  consul,  or  com- 
mercial agent  of  the  United  States.  The 
official  seal  of  these  officers  is  sufficient 
authentication  of  the  acknowledgment  to 
admit  the  deed  to  record.  Battle's  Re- 
visal,  c.  35,  §§  2-8. 

2  Battle's  Revisal,  1873,  c.  35,  §  12. 

3  Robinson  v.  Willoughby,  70  N.  C. 
358;  Fleming  v.  Burgin,  2  Ired.  (N.  C.) 
Eq.  584;  Leggett  v.  Bullock,  Busb.  (N. 
C.)  L.  283. 

*  Ohio.  —  Acknowledgments  may  be 
made  before  a  judge  of  the  supreme  court 
or  court  of  common  pleas,  a  justice  of 
the  peace,  notary  public,  mayor,  or  other 
presiding  officer  of  an  incorporated  town 
or  city,  who  must  certify  the  same  on  the 
same  sheet  with  the  instrument ;  and 
where   the  wife  also  executes  the  instru- 


ment, he  must  certify  that  he  examined 
her  separate  and  apart  from  her  husband, 
and  read  or  otherwise  made  known  to  her 
the  contents  of  the  instrument ;  clerks  of 
court,  probate  judges,  and  county  survey- 
ors are  also  authorized  to  take  and  certify 
acknowledgments.    Rev.  Stat.  c.  34,  §  1. 

Deeds  executed,  acknowledged,  or  proven 
out  of  the  state  in  accordance  with  the 
laws  of  the  place  where  executed,  or  in  ac- 
cordance with  the  laws  of  this  state,  are 
as  valid  as  if  executed  in  this  state.  lb.  c. 
34,  §  5.  In  a  foreign  country  the  acknowl- 
edgement may  be  made  before  any  consul 
of  the  United  States  resident  therein  who 
must  certify  to  the  acknowledgment  in  the 
same  manner  as  when  taken  in  the  state. 
lb.  c.  34,  §  26. 

Form  of  certificate  of  husband  and  wife 
prescribed.     lb.  c.  34,  §  2  :  — 

State  of  ,  County  of         ,  ss.     On 

this  day  of  ,  A.  d.  187  ,  before 

me  (name  and  title),  in  and  for  said  county, 
personally  came  and  his  wife, 

and  acknowledged  the  execution  of  the 
foregoing  instrument  to  be  their  act  and 
deed  for  the  uses  and  purposes  therein 
mentioned.     And    the  said  ,  wife  of 

,  being  examined  by  me  separate  and 
apart  from  her  said  husband,  and  the  con- 
tents of  said  instrument  made  known  and 
explained  to  her  by  me,  did  declare  that 
she  did  voluntarily  sign,  seal,  and  acknowl- 
edge the  same,  and  that  she  was  still  satis- 
fied therewith  as  her  act  and  deed. 

887 


§  514.] 


REGISTRATION   AS   AFFECTING   PRIORITY. 


corder  of  the  county  in  which  the  premises  are  situated,  and  take 
effect  from  the  time  when  the  same  are  delivered  to  the  recorder 
for  record ;  and  if  two  or  more  are  presented  for  record  on  the 
same  day,  they  take  effect  in  the  order  of  presentation  for  record.^ 
Separate  record  books  are  kept  for  the  recording  of  mortgages, 
deeds  of  trust,  and  powers  of  attorney  for  the  execution  of  the 
same.2 

Under  this  statute  mortgages  take  effect  in  the  order  of  their 
delivery  for  record,  although  a  junior  mortgagee  had  actual  notice 
of  the  existence  of  a  prior  unrecorded  mortgage.  The  statute 
wholly  excludes  the  doctrine  of  notice,  and  makes  priority  wholly 
dependent  upon  the  order  of  record.^ 


514.  Oregon.*  —  Every  conveyance  not  recorded  by  the  county 
clerk  in  the  county  where  the  lands  lie  within  five  days  is  void 
against  any  subsequent  purchaser,  in  good  faith  and  for  a  valuable 

consideration,  whose  conveyance  is  first  duly  recorded.     Separate 

In  witness  whereof  I  have  hereunto  set  genuineness  of  his  signature,  and  that  the 

my  hand  and  affixed  my  official  seal  on  the  deed  is  executed  according  to  the  laws  of 

day  and  year  last  above  written.  such  state,  territory,  or  district.      General 

(Seal.)                 (Signature  and  title.)  Laws,  1872,  pp.  516,  517. 

1  Rev.  Stat.  S.  &  C.  c.  34,  §  57  ;  and  In  a  foreign  country  the  execution  may 
see  Doe  v.  Bank  of  Cleveland,  3  McLean,  be  according  to  the  laws  of  that  country, 
140.  and  acknowledged  before  any  notary  public 

2  lb.  §  28.  This  provision  is  directory  therein,  or  any  diplomatic  officer  or  consul 
merely.     Smith  r.  Smith,  13  Ohio  St.  532.  of  the  United  States  appointed  to  reside 

3  Mayham  v.  Coombs,  14  Ohio,  428 ;  therein.  A  notary  public  must  affix  the 
Stansell  v.  Roberts,  13  lb.  148;   Bercaw  seal  of  his  office. 

V.  Cockerill,  20   Ohio   St.  163,  and  cases  Form  of  certificate  :  — 

cited.     See  Declaratory  Act  of  March  16,  State  of            ,  County  of          ,  ss.    On 

1838 ;  S.  &  C.  469.  this               day  of        ,  A.  d.  187  ,  person- 

*  Oregon.  —  Deeds  may  be  executed  in  ally  came  before  me  (name  and  title),  in 

any  other  state,  territory,  or  district  of  the  and   for    said   county,  the   within   named 

United  States  according  to  the  laws  thereof,  and             his  wife,  to  me  personally 

and  acknowledged  before  any  judge  of  a  known  to  be  the  identical  persons  described 

court   of  record,  justice  of  the  peace,  or  in  and  who  executed  the  within  instrument, 

notary  public,  or  other  officer  authorized  and  acknowledged    to   me   that   they  ex- 

by  the  laws  of  such  state,  territory,  or  dis-  ecuted   the    same  freely  for  the  uses  and 

trict,  to  take  the  acknowledgment  of  deeds  purposes   therein   named.     And    the    said 

therein,  or   before   any  commissioner  ap-  ,  on  examination  separate  and  apart 

pointed  by  the  governor  of  this  state  for  from  her  said  husband,  acknowledged   to 

such    purpose.     When    not   taken  before  me  that  she  executed  the  same  freely  and 

such  commissioner,  a  certificate  of  a  clerk  without  fear  or  compulsion  of  any  one. 

of  a  court  of  record  of  the  county  under  Witness   my  hand   and  seal  this 

his  seal  of  office  should  be  attached,  certify-  day  of            ,  187  . 

ing  the  official  character  of  the  officer,  the  (Seal.)                (Signature  and  title.) 

388 


REGISTRY   ACTS   OF   THE   SEVERAL   STATES. 


[§  515. 


books  are  kept  for  the  recoi-d  of  mortgages.  When  a  deed  pur- 
ports to  be  an  absolute  conveyance  in  terms,  but  is  made  or  in- 
tended to  be  made  defeasible  by  force  of  a  deed  of  defeasance  or 
other  instrument  for  that  purpose,  the  original  conveyance  is  not 
thereby  defeated  or  affected  as  against  any  person  other  than  the 
maker  of  the  defeasance,  or  his  heirs  or  devisees,  or  persons  hav- 
ing actual  knowledge  of  it,  unless  the  instrument  of  defeasance 
has  been  recorded  in  the  office  for  the  recording  of  deeds  and 
mortgages  of  the  county  where  the  lands  lie.^ 

515.  Pennsylvania.^  —  It  is  provided  that  no  mortgage,  or 
defeasible  deed  in  the  nature  of  a  mortgage,  shall  be  good  or 
sufficient  to  convey  or  pass  any  freehold,  or  inheintance,  or  estate, 
for  life  or  years,  unless  it  is  recorded  in  the  office  for  recording 
deeds  for  the  county  within  six  months  after  its  date.^     But  it  is 


1  Gen.  Laws,  1872,  pp.  518,  519. 

2  Pennsylvania.  —  Ackuowledgments 
in  the  state  m.ay  be  taken  before  justices 
of  the  supreme  court,  judges  of  the  courts 
of  common  pleas,  mayor,  recorder,  and  al- 
dermen of  Philadelphia,  Pittsburg,  Alle- 
ghany, and  Carbondale,  the  recorders  of 
deeds  and  notaries  public,  and  all  justices 
of  the  peace.  Out  of  the  state,  by  the  may- 
or or  chief  magistrate  of  the  city,  town, 
or^lace  where  the  deed  is  executed,  under 
the  public  seal ;  by  any  justice  or  judge 
of  the  supreme  or  superior  court,  or  court 
of  common  pleas,  or  of  any  court  of  pro- 
bate, or  court  of  record  of  any  state  or  ter- 
ritory in  the  United  States,  certified  under 
the  hand  and  seal  of  the  court;  by  any 
judge  of  the  United  States  supreme  court 
or  district  court;  by  any  officer  or  magis- 
trate of  any  state  or  territory  in  the  United 
States  authorized  by  the  laws  thereof  to 
take  acknowledgments  therein ;  a  certifi- 
cate of  a  clerk  of  court  of  record  of  the 
official  character  of  such  officer,  and  of  his 
authority  to  take  ackuowledgments,  should 
be  annexed.  Acknowledgments  may  also 
be  taken  by  ambassadors  and  other  public 
ministers  of  the  United  States  under  official 
seal,  consuls  and  vice-consuls  of  the  United 
States  under  consular  seal ;  by  any  notary 
public  in  the  United  States,  or  in  a  foreign 


country,  or  by  commissionei's  appointed  by 
the  governor  of  this  state.  Brightly's 
Purdon's  Dig.  1872,  pp.  458-475. 

A  married  woman  must  acknowledge 
separate  and  apart  from  her  husband. 
Form  of  certificate  :  — 

State  of  ,  County  of  ,  ss. 

On  this  day  of  ,  a.   d.   187  , 

before  me  (name  and  title),  duly  commis- 
sioned in  and  for  said  county,  came 
and  his  wife,  and  acknowledged  the 

foregoing  instrument  to  be  their  act  and 
deed,  and  desired  the  same  to  be  recorded 
as  such.  She,  the  said  ,  being  of  lawful 
age,  and  by  me  examined  separate  and 
apart  from  her  said  husband,  and  the  con- 
tents of  said  deed  being  first  fully  made 
known  to  her,  did  thereupon  declare  that 
she  did  voluntarily  and  of  her  own  free 
will  and  accord  sign  and  seal,  and  as  her 
act  and  deed,  deliver  the  same  without 
any  coercion  or  compulsion  of  her  said 
husband.  Witness  my  hand  and  seal  the 
day  and  year  aforesaid. 

(Seal.)  (Signature  and  title.) 

3  Brightly's  Dig.  1872,  p.  477.  This 
provision  was  first  enacted  in  1715,  for  the 
protection  of  subsequent  mortgagees  and 
others  from  loss  by  secret  pledges  of  prop- 
erty. The  six  months  allowed  are  calendar 
months.  BrudencU  v.  Vaux,  2  Dall.  302. 
389 


§  516.] 


REGISTRATION   AS   AFFECTING   PRIORITY. 


held  that  an  unrecorded  mortgage  is  not  wholly  inoperative.  It 
is  good  against  the  mortgagor  and  subsequent  incumbrancers  with 
notice,  and  a  mortgage  for  purchase  money  is  good  against  a 
judgment  creditor  with  actual  notice  before  his  debt  was  con- 
tracted.^  If  the  mortgage  remain  unrecorded  at  the  time  of  the 
death  of  the  mortgagor,  though  good  against  him  while  he  lived, 
is  not  good  against  his  creditors  after  his  decease,  but  must  then 
come  in  with  his  general  debts.^ 

With  the  exception  of  mortgages  for  purchase  money,  no  mort- 
gage is  a  lien  until  left  for  record  ;  but  when  recorded,  the  pri- 
ority of  lien  is  according  to  the  priority  of  record.^  It  is  the  duty 
of  the  recorder  to  indorse  the  time  upon  the  mortgage  when  left 
for  record,  and  to  number  it ;  and  if  two  or  more  are  left  on 
the  same  day,  they  have  priority  according  to  the  time  they  were 
left  at  the  office  for  record.^ 

A  mortgage  for  purchase  money,  if  recorded  within  sixty  days 
from  its  execution,  has  priority.^  Of  two  mortgages  for  purchase 
money  recorded  within  the  sixty  days,  that  which  is  first  re- 
corded has  priority.^ 

516.  Rhode  Island."  —  All  deeds  of  trust,  mortgages,  and  other 


1  Nice's  Appeal,  54  Pa.  St.  200 ;  Mel- 
Ion's  Appeal,  32  Pa.  St.  121  ;  Britton's 
Appeal,  45  Pa.  St.  172;  Speer  i;.  Evans, 
47  Pa.  St.  141. 

2  Nice's  Appeal,  54  Pa.  St.  200  ;  Adams' 
Appeal,  1  Pen n.  447. 

8  Brooke's  Appeal,  64  Pa.  St.  127; 
Foster's  Appeal,  3  Pa.  St.  79 ;  Dig.  supra, 
p.  478. 

*  Brooke's  Appeal,  64  Pa.  St.  127. 

^  Dig.  supra,  p.  478  ;  Bratton's  Appeal, 
8  Pa.  St.  164. 

^  Dungan  v.  Am.  &c.  L.  Ins.  Co.  52  Pa. 
St.  2.53. 

'  Rhode  Island.  —  Acknowledgments 
in  the  state  are  made  before  a  senator, 
judge,  justice  of  the  peace,  notary  public, 
or  town  clerk  ;  out  of  the  state,  within  the 
United  States,  they  may  be  made  before 
any  judge,  justice  of  the  peace,  mayor,  or 
notary  public  in  the  state  where  the  deeds 
are  executed,  or  by  any  commissioner  ap- 
pointed by  the  governor  of  this  state;  and 
without  the  limits  of  the  United  States, 

390 


before  any  ambassador,  minister  charg€ 
d'affaires,  recognized  consul,  vice-consul, 
or  commercial  agent  of  the  United  States, 
or  by  any  commissioner  appointed  and 
qualified  as  aforesaid  in  the  country  in 
which  such  deeds  are  executed.  Gen.  Stat. 
1872,  pp.  349,  350.  The  wife  must  ac- 
knowledge separate  and  apart  from  her 
husband.     lb.  p.  330. 

Form  of  certificate  :  — 

State  of  ,  County   of  ,  ss. 

On   this  day  of  ,  a.  d.    187  , 

before  me  (name  and  title),  personally  ap- 
peared and  his  wife,  and  the 
said  acknowledged  the  foregoing 
instrument  by  him  signed  to  be  his  free 
and  voluntary  act  and  deed  ;  and  the  said 
being  by  me  examined  privily  and 
apart  from  her  said  husband,  and  having 
said  instrument  shown  and  explained  to 
her  by  me,  declared  to  me  that  it  is  her 
voluntary  act,  and  that  she  does  not  re- 
tract the  same. 

In  witness  whereof  I  have  set  my  hand 


REGISTRY   ACTS   OF   THE   SEVERAL   STATES.  [§  517. 

conveyances  of  real  estate,  are  void  unless  acknowledged  and  re- 
corded in  the  office  of  the  town  clerk  of  the  town  where  the  lands 
lie.  As  between  the  parties  and  their  heirs  they  are,  however, 
valid  and  binding  without  record.^  A  bond  of  defeasance  or  other 
instrument  wdiich  may  cause  any  deed  to  operate  as  a  mortgage 
must  be  recorded  ;  otherwise  the  deed  does  not  operate  as  a  mort- 
gage against  any  person  who  may  bond  fide  and  without  notice  of 
such  incumbrance  purchase  the  real  estate  conveyed  by  such  deed 
of  the  person  to  whom  the  same  was  made ;  and  the  person  en- 
titled to  the  defeasance  is  barred  of  all  right  of  redemption  against 
such  second  purchaser.^ 

517.  South  Carolina.^  —  No  mortgage  or  other  instrument 
in  writing  in  the  nature  of  a  mortgage  of  real  estate  is  valid, 
so  as  to  affect  the  rights  of  subsequent  creditors  or  purchasers 
for  valuable  consideration  without  notice,  unless  the  same  is  re- 
corded in  the  office  of  the  register  of  mesne  conveyances  for  the 
county  where  the  real  estate  lies  within  sixty  days  from  its  ex- 
ecution.* 

and  seal  at            ,  the  day  and  year  above  to  all  and   singular   the   premises  within 

written.  mentioned  and  released. 

(Seal.)                 (Signature  and  title.)  (Signed  by  wife.) 

1  Gen.  Stat.  1872,  p.  350.  Given   under   my   hand  and   seal   this 

2  lb.  p.  355.  day  of            ,  a.  d.  187  . 

3  South  Carolina.  —  Acknowledg-  (Seal.)  (Signature  and  title.) 
ments  within  the  state  can  be  taken  only  Before  a  deed  is  admitted  to  probate, 
before  notaries  public  and  trial  justices,  one  of  the  subscribing  witnesses,  if  within 
and  without  the  state  by  a  commissioner  the  state,  must  go  before  a  trial  justice  or 
of  deeds  for  South  Carolina.  Rev.  Stat,  notary  public,  or  without  the  state,  before 
1873,  pp.  114.  a  commissioner  for   South  Carolina,  and 

Form  of  certificate  of  renunciation  of  make  affidavit  in  the  following  form,  which 

dower  :  —  he  must  sign  :  — 

State  of              ,  County  of             ,  ss.  State  of               ,  County  of           ,  ss. 

I  (name  and  title),  do  hereby  certify  unto  Personally  appeared  before  me            ,  and 

all  whom  it  may  concern  that  the  wife  of  made  oath  that  he  saw            sign,  seal, 

the  within  named            did  this  day  ap-  and  deliver  the  within  conveyance  for  the 

pear  before  me,  and  upon  being  privately  uses  and  purposes  therein  mentioned,  and 

and  separately  examined  by  me,  did  de-  that  he  with          ,  in  the  presence  of  each 

clare  that  she  does  freely,  voluntarily,  and  other,  witnessed  the  due  execution  thereof 

without  any  compulsion,  dread,  or  fear  of  (Signed.) 

any   person   or   ])ersons  whomsoever,  re-  Sworn    to   before  me   the            day  of 

nounce,   release,   and    forever    relinquish  ,a.  d.  187  . 

unto  the  within  named         ,  his  heirs  and  (Seal.)                 (Signature  and  title.) 

assigns,  all  her  interest  and  estate,  and  also  *  Rev.  Stat.  1873,  p.  422.     If  the  morW 

all  her  right  and  claim  of  dower  of,  in,  or  gage  is  not  recorded  within  the  time  lim- 

391 


§  518.] 


EEGISTRATION   AS   AFFECTING   PRIORITY. 


When  tlie  same  lands  are  mortgaged  at  different  times,  the 
debts  meant  to  be  secured  by  such  mortgages  must  be  paid  in 
the  order  the  same  are  recorded.^ 

This  statute,  first  enacted  in  1843,  placed  subsequent  creditors 
of  the  mortgagor  on  the  same  footing  with  subsequent  purchas- 
ers from  him.  Before  that  time,  a  mortgage  not  recorded,  or  one 
which  conferred  only  an  equitable  right,  and  was,  perhaps,  inca- 
pable of  record,  was  preferred  to  a  subsequent  creditor,  though 
not  valid  against  a  subsequent  purchaser  for  valuable  considera- 
tion without  notice.^ 

518.  Tennessee.^  —  Mortgages  and  other  conveyances  of  real 
estate  are  registered  in  the  county  where  the  land  lies,  unless  it 
lies  partly  in  two  counties,  when  it  may  be  registered  in  either  ; 
but  if  it  consists  of  separate  tracts,  the  deed  must  be  registered  in 
each  of  the  counties  where  any  of  the  tracts  lie.  The  deed  has 
effect  between  the  parties  to  it,  their  heirs  and  representatives, 
without  registration  ;  but  as  to  other  persons  not  having  actual 


ited  it  is  not  a  valid  lien  as  against  one 
who  subsequently  purchases  without  no- 
tice, although  it  be  recorded  after  the 
purchase  before  the  purchaser's  deed 
is  recorded.  Williams  v.  Beard,  1  S.  C. 
309. 

1  lb.  p.  424. 

2  Boyce  v.  Shiver,  3  S.  C.  515. 

3  Tennessee.  —  Acknowledgments 
within  'the  state  are  made  before  clerks  of 
county  courts  and  their  deputies,  and  no- 
taries public.  Elsewhere  in  the  United 
States,  before  a  commissioner  appointed 
by  the  governor  of  this  state,  a  notary 
public,  or  any  court  of  record,  or  any 
clerk  of  any  court  of  record.  Out  of  the 
United  States,  before  a  commissioner  of 
Tennessee  appointed  for  such  country,  a 
notary  public  of  such  country,  or  a  consul, 
minister,  or  ambassador  of  the  United 
States  in  such  country.  Code,  1858  and 
1871,  §§  2039-2041. 

An  acknowledgment  before  a  notary,  com- 
missioner, consul,  minister,  or  ambassador 
must  be  certified  under  the  officer's  official 
seal  Code,  §  2043.  The  official  charac- 
ter of  a  clerk  of  court  should  be  certified 

392 


by  the  presiding  judge  of  the  court.  The 
wife  must  acknowledge  separate  and  apart 
from  her  husband.     lb.  §  2076. 

Form  of  certificate  given  by  Code,  § 
2042  :  — 

State  of  ,  County  of  ,  ss. 

Before  me  (name  and  title),  personally  ap- 
peared the  within  named  bargainor  (or 
other  name),  Avith  whom  I  am  personally 
acquainted,  and  who  acknowledged  that 
he  executed  the  within  deed  (or  other  in- 
strument) for  the  purposes  therein  con- 
tained. Witness  my  hand  and  seal  of 
office  this  day  of  ,  a.  d.  187  . 

(Official  seal.)     (Signature  and  title.) 

To  the  foregoing  there  should  be  an- 
nexed, for  the  wife's  acknowledgment,  a 
certificate  as  follows,  §  2077  :  "  And  , 

wife  of  the  said  ,  having  appeared  be- 
fore me  privily  and  apart  from  her  hus- 
band, the  said  acknowledged  the  ex- 
ecution of  said  deed  to  have  been  done  by 
her  freely,  voluntarily,  and  understand- 
ingly,  without  compulsion  or  constraint 
from  her  said  husband,  and  for  the  pur- 
poses therein  expressed." 


REGISTRY    ACTS   OF   THE   SEVERAL   STATES.       [§§  519,  520. 

notice,  it  has  effect  only  from  the  noting  for  registration  on  the 
books  of  the  register.  Priority  of  registration  determines  prior- 
ity of  right.  A  conveyance  not  recorded  is  void  as  to  existing  or 
subsequent  creditors  of  or  bond  fide  purchasers  from  the  makers 
without  notice.^ 


519.  Texas.^  —  Mortgages  and  deeds  of  trust  are  recorded 
within  the  county  where  the  lands  are  situated,  in  the  office  of 
the  clerk  of  the  county  court.  They  take  effect  and  are  valid  as 
to  all  subsequent  purchasers  for  a  valuable  consideration  without 
notice,  and  as  to  all  creditors,  from  the  time  when  so  duly  re- 
corded ;  but  as  between  the  parties  and  their  heirs,  and  as  to  pur- 
chasers with  notice,  or  without  valuable  consideration,  they  are 
valid  and  binding  without  being  recorded.^ 

520.  Utah  Territory.*  —  Mortgages  and  other  conveyances  of 


1  Code,  1858,  §§  2032,  2071-2075. 

2  Texas.  —  Acknowledgments  within 
the  state  may  be  made  before  a  notary 
public,  district  clerk,  or  judge  of  the  su- 
preme or  district  court,  and  these  officers 
are  required  to  keep  a  record  of  the  same. 
Elsewhere  in  the  United  States,  before  a 
notary  public,  commissioner  of  deeds  for 
the  state,  or  some  judge  or  clerk  of  a 
court  of  record  having  a  seal ;  and  without 
the  United  States,  before  some  public  min- 
ister, charge  d'affaires,  consul,  or  consular 
agent  of  the  United  States,  or  notary 
public.  The  certificate  should  in  all  cases 
be  under  the  official  seal  of  the  officer 
taking  the  acknowledgment.  There  is  no 
dower,  and  therefore  a  wife  need  not  join 
her  husband  in  a  sale  of  his  land.  In  sell- 
ing her  land  the  husband  should  join  her 
in  executing  and  acknowledging  the  deed. 
Such  acknowledgment  may  be  taken  be- 
fore any  of  the  officers  above  named,  ex- 
cept a  clerk  of  court,  and  except  in  a  for- 
eign countrj-,  before  a  notary  public.  Pas- 
chal's  Dig.  arts.  1003,  1004,  5024;  Laws 
1874,  p.  155.  Certificate  of  acknowledg- 
ment, see  Paschal's  Dig.  art.  1003. 

State  of  ,  County  of  ,  ss. 

Before  the  undersigned  (name  and  title), 
in  and  for  the  county  and  state  aforesaid, 


duly  commissioned  and  qualified,  person- 
ally appeared  and  his  wife,  to 
me  well  known  to  be  the  individuals  de- 
scribed in  and  who  executed  the  foregoing 
conveyance  ;  and  they  acknowledged  to 
me  that  they  executed  the  same  for  the 
uses,  purposes,  and  consideration  therein 
stated,  and  that  the  same  is  their  act  and 
deed ;  and  the  said  ,  wife  of  said 
,  having  been  examined  by  me 
privily  and  apart  from  her  said  husband, 
and  having  the  said  deed  fully  explained 
to  her,  she,  the  said  ,  acknowledged 
the  same  to  be  her  act  and  deed,  and  de- 
clared that  she  had  willingly  signed  and 
delivered  the  same,  and  that  she  wished 
not  to  retract  it. 

In  testimony  whereof,  &c. 

(Se.al.)  (Signature  and  title.) 

8  Paschal's  Dig.  arts.  4988,  4994. 

*  Utah  Territory.  —  Acknowledg- 
ments in  the  territory  may  be  taken  before 
a  judge  or  clerk  of  court  having  a  seal, 
notary  public,  or  county  recorder,  or  by 
justices  of  the  peace,  where  the  lands  are 
situate.  Laws  1874,  p.  27.  Elsewhere  in 
the  United  States  they  may  be  taken  be- 
fore a  judge  or  clerk  of  a  court  of  the 
United  States,  or  of  any  state  or  territory 
having  a  seal,  or  a  notary  public,  or  a 

393 


§§  521,  522.]      REGISTRATION  AS   AFFECTING   PRIORITY. 

land  are  recorded  in  the  office  of  the  connty  recorder  for  the 
county  where  the  lands  are  situate.  They  must  be  attested  by  at 
least  one  witness,  and  must  be  duly  proved  or  acknowledged.^ 

521.  Vermont.^  —  Mortgages  and  other  conveyances  of  real 
property  are  recorded  in  the  clerk's  office  of  the  town  in  which 
the  lands  lie.  Unless  so  recorded,  they  are  not  good  or  effectual 
in  law  to  hold  the  lands  against  any  other  person  but  the  grantor 
and  his  heirs  only.  When  a  deed  is  made  by  virtue  of  a  power  of 
attorney  this  must  also  be  recorded,  or  the  deed  is  without  effect 
and  is  inadmissible  in  evidence.^ 


522.  Virginia.^  —  Deeds  of  trust  and  mortgages  are  void  as  to 
creditors,  and    subsequent   purchasers  for  valuable  consideration 


commissioner  of  deeds  for  this  territory. 
Out  of  the  United  States  they  may  be  taken 
before  a  judge  or  clerk  of  any  court  of  any 
state,  kingdom,  or  empire,  having  a  seal,  or 
any  notary  public,  or  any  minister,  com- 
missioner, or  consul  of  the  United  States 
appointed  to  reside  therein.  A  legally 
appointed  deputy  of  any  of  the  above 
mentioned  officers  may  take  the  acknowl- 
edgment in  the  name  of  the  principal. 
Doveerwas  abolished,  Feb.  18, 1872  ;  Laws, 
p.  27.  A  married  woman  may  convey  her 
own  real  estate  as  afenie  sole. 

The  form  of  certificate  is  the  same  as 
that  prescribed  for  California. 

1  Laws  185.5,  c.  75;  and  see  Laws  1867, 
c.  28. 

2  Vermont. — Acknowledgments  in  the 
state  may  be  taken  by  a  justice  of  the 
peace,  notary  public  under  his  official  seal, 
or  master  in  chancery.  Out  of  the  state, 
whether  in  the  United  States  or  a  foreign 
country,  they  may  be  taken  by  a  justice  of 
the  peace,  notary  public,  or  commissioner 
for  Vermont,  or  any  officer  authorized  by 
the  laws  of  another  state  to  take  acknowl- 
edgments; or  in  a  foreign  country,  also, 
before  any  minister,  charge  d'affaires,  con- 
sul, or  vice-consul.  The  signature  of  the 
officer  taking  the  acknowledgment  is ;7r('?/(a 
facie  sufficient,  without  the  certificate  of 

a  clerk  of  court  of  record  to  that  effijct. 
No  separate  acknowledgment  or  private 

394 


examination  of  the  wife  is  required.  See 
Gen.  Stat.  1870,  p.  448. 

Form  of  certificate :  — 

State  of  ,  County  of  ,  ss.    At 

this  day  of  ,  187      ,  person- 

ally appeared  and  his  wife,  the 

signers  and  sealers  of  the  above  written 
instrument,  and  acknowledged  the  same 
to  be  their  free  act  and  deed. 

(Signature  and  title.) 

3  Gen.  Stat.  1870,  pp.  448,  451. 

*  Virginia.  —  Acknowledgments  may 
be  made  before  the  clerk  of  any  county  or 
corporation  in  which  the  real  estate  lies, 
or  before  a  justice,  a  commissioner  in  chan- 
cery, or  notary  public,  within  the  United 
States,  or  before  a  commissioner  appointed 
by  the  governor  of  this  state,  or  before 
the  clerk  of  any  court  out  of  the  state  and 
within  the  United  States;  and  in  any  for- 
eign country,  before  any  diplomatic  officer, 
consul-general,  consul,  vice-consul,  or  com- 
mercial agent  appointed  by  the  govern- 
ment of  the  United  States  to  such  foreign 
country,  or  before  the  proper  officer  of  any 
court  of  such  country,  or  of  the  mayor  or 
other  chief  magistrate  of  any  city,  town, 
or  corporation  therein.  Code,  1873,  c.  117, 
§2-7. 

A  married  woman  must  acknowledge 
upon  an  examination  privily  and  apart 
from  her  husband.  The  acknowledgment 
may  be  made  before  any  of  the  officers 


REGISTRY  ACTS  OF  THE  SEVERAL  STATES. 


[§  523. 


without  notice,  until  and  except  from  the  time  that  they  are  duly 
admitted  to  record  in  the  county  or  corporation  wherein  the  prop- 
erty may  be  ;  or,  when  the  property  is  within  the  jurisdiction  of  a 
corporation  or  hustings  court,  are  recorded  in  the  clerk's  office  of 
such  court.  Deeds  other  than  mortgages  and  deeds  of  trust,  when 
recorded  witliin  sixty  days  from  the  day  of  acknowledgment,  are 
as  valid  as  to  creditors  and  subsequent  purchasers  as  if  recorded 
on  the  day  of  such  acknowledgment.  When  two  or  more  deeds 
are  recorded  on  the  same  day,  that  which  is  first  admitted  to  rec- 
ord has  priority.^ 


523.  Washington  Territory.^ —  Deeds  and  mortgages  are  re- 
corded in  the  office  of  the  auditor  of  the  comity  where  the  land  is 
situated,  and  are  valid  as  against  bond  fide  purchasers  from  the 


above  named,  only  that  two  justices  of 
the  peace  must  act  together  instead  of  one. 
Code,  c.  117,  §  4. 

The  form  of  certificate  is  as  follows. 
Code,  1873,  c.  117,  §§  2,  4  :  — 

State  of  ,  County  of  ,  ss.    I 

(name  and  title),  do  certify  that  ,  whose 
name  is  signed  to  the  writing  above,  bear- 
ing date  on  the  day  of  ,  18  , 
has  acknowledged  the  same  before  me,  in 
my  county,  aforesaid ;  and  that  ,  the 
wife  of  ,  whose  name  is  signed  to 
the  writing  above,  personally  appeared 
before  me  in  the  county  aforesaid,  and 
being  examined  by  me  privily  and  apart 
from  her  husband,  and  having  the  writing 
aforesaid  fully  explained  to  her,  she  the 
said  acknowledged  the  said  writing 
to  be  her  act,  and  declared  that  she  had 
willingly  executed  the  same,  and  does  not 
wish  to  retract  it. 

Given  under  my  hand  this  day 

of  ,  18     . 

(Signature  and  title.) 

1  Code,  1873,  c.  114,  §§  4-9. 

2  WAsnixGTON  Territory.  —  Ac- 
knowledgments may  be  taken  by  a  judge 
of  the  supreme  court,  judge  of  the  probate 
court,  justice  of  the  peace,  county  auditor, 
a  clerk  of  the  district  or  supreme  court, 
the  register  of  the  United  States  Land 
OflSce,  or  a  notary  public.  Probate  Prac- 
tice Act,  1873,  §  2. 


Dower  and  curtesy  are  now  abolished. 
Stat.  1875,  p.  55.  To  release  dower,  or 
convey  her  real  estate,  the  acknowledg- 
ment of  a  married  woman  must  be  sepa- 
rate and  apart  from  her  husband. 

Certificate  of  acknowledgment :  — 

State  of  ,  County  of         ,  ss.     Be 

it  remembered  that  on  this  day  of 

,  A.  D.  187  ,  before  me,  the  un- 
dersigned authority,  personally  came 
and  his   wife,   who   are   personally 

known  to  me  to  be  the  same  persons  who 
are  named  within,  and  who  executed  the 
foregoing  mortgage  deed,  and  severally  ac- 
knowledged to  me  that  they  executed  the 
same  freely  for  the  uses  and  purposes 
therein  set  forth.  And  I  certify  that  I 
did  examine  the  said  separate  and 

apart  from  her  husband,  and  that  I  did, 
in  the  said  examination,  make  known  to 
her  the  contents  of  the  said  mortgage  deed, 
and  fully  apprise  her  of  her  rights  of 
homestead  under  the  laws  of  this  territory, 
and  of  the  effect  of  signing  the  said  mort- 
gage, and  she  thereupon,  then  and  there, 
acknowledged  to  me  that  she  executed  the 
same  voluntarily  of  her  own  free  will,  and 
without  any  fear  of  or  coercion  from  her 
husband. 

In  witness  whereof  I  have  hereunto  set 
my  hand  and  afiixed  my  official  seal,  the 
day  and  year  first  above  written. 

(Seal.)  (Signature  and  title.) 

395 


§§  524,  525.]      REGISTRATION   AS   AFFECTING  PRIORITY. 

date  of  the  filing  of  them  for  record.     The  record  is  notice  to  all 
the  world.^ 


524.  "West  Virginia.^  —  Deeds  of  trust  and  mortgages  are  void 
as  to  creditors,  and  subsequent  purchasers  for  a  valuable  considera- 
tion without  notice,  until  and  except  from  the  time  they  are  duly- 
admitted  to  record  in  the  count}'-  wherein  the  property  is  situated. 
If  two  or  more  writings  embracing  the  same  property  are  ad- 
mitted to  record  in  same  county  on  the  same  day,  that  which  was 
first  admitted  to  record  has  priority.^ 

525.  Wisconsin.^  —  Every  conveyance  not  recorded   in    the 


1  Laws  1859,  p.  299. 

2  West  Virginia. — Acknowledgments 
may  be  made  before  a  justice,  notary  pub- 
lic, clerk  of  a  county  court,  prothonotary, 
or  clerk  of  any  court  witliin  the  United 
States,  or  a  commissioner  appointed  by  the 
governor  of  this  state.  Out  of  the  United 
States  the  certificate  must  be  under  the 
official  seal  of  a  minister  plenipotentiary, 
charge  d'affaires,  consul-general,  consul, 
vice-consul,  or  commercial  agent  appointed 
by  the  United  States  to  such  country,  or 
of  the  proper  officer  of  any  court  of  such 
country,  or  of  the  mayor  or  other  chief 
magistrate  of  any  city,  town,  or  corpora- 
tion therein.     Acts  1875,  c.  67,  §  3. 

The  wife  must  acknowledge  separate 
and  apart  from  the  husband. 

For  form  of  certificate  see  Acts  1875, 
§§3,4:- 

Statc  of  ,  County  of  ,  to  wit: 

I  (name  and  title),  do  certify  ,  whose 

name  is  signed  to  the  writing  above  (or 
hereto  annexed),  bearing  date  on  the 
day  of        ,  has  this  day  acknowledged  the 
same  before  me,  in  my  said  .     Given 

under  my  hand  this         day  of 

The  certificate  of  wife's  acknowledgment 
should  be  added  as  follows  :  — 

And  I  do  certify  that  ,  wife  of  , 
whose  name  is  signed  to  the  writing 
above ;  bearing  date  on  the  day  of  , 
personally  appeared  before  me  in  the 
county  aforesaid,  and  being  examined  by 
me  privily  and  apart  from  her  husband, 

396 


and  having  the  said  writing  fully  explained 
to  her,  she,  the  said  ,  acknowledged 
the  said  writing  to  be  her  act,  and  declared 
that  she  had  willingly  executed  the  same 
and  does  not  wish  to  retract  it.   Given,  &c. 

3  Code,  1870,  c.  74,  §§  5,  8. 

*  Wisconsin.  — Acknowledgments  with- 
in the  state  are  made  before  any  judge  or 
commissioner  of  a  court  of  record,  clerk 
of  a  circuit  court,  county  clerk,  notary 
public,  or  justice  of  the  peace;  elsewhere 
in  the  United  States,  before  any  judge  of 
a  court  of  record,  notary  public,  justice  of 
the  peace,  master  in  chancery,  or  other 
officer  there  authorized  by  law  to  take  the 
acknowledgment  of  deeds  therein,  or  be- 
foi'e  a  commissioner  appointed  hy  the  gov- 
ernor of  this  state  for  such  purpose. 
When  the  acknowledgment  is  not  before 
such  commissioner,  or  a  notary  public 
under  his  seal  of  office,  there  must  be  at- 
tached a  certificate  of  a  clerk  of  a  court  of 
record  of  the  county  or  district  where  the 
acknowledgment  was  taken,  under  the 
seal  of  his  office,  of  the  official  character  of 
the  officer  taking  the  acknowledgment,  of 
the  genuineness  of  his  signature,  and  that 
the  deed  is  executed  and  acknowledged 
according  to  the  laws  of  the  state,  territory, 
or  district.  In  a  foreign  country  a  deed 
may  be  executed  and  acknowledged  before 
a  notary  public  who  must  certify  under 
his  official  seal,  or  other  officer  authorized 
by  law  therein  to  take  such  acknowledg- 
ments, or  any  minister,  chanj€  d'affaires, 


REGISTRY   ACTS    OF   THE    SEVERAL   STATES. 


[§  526. 


office  of  the  register  of  deeds  for  the  county  in  which  the  hind 
lies  is  void  as  against  any  subsequent  purchaser,  in  good  faith  and 
for  a  vakiable  consideration,  whose  conveyance  shall  first  be  duly 
recorded.^  When  a  deed  purpoi-ts  to  be  an  absolute  conversance 
in  terms,  but  is  made  or  intended  to  be  made  defeasible  by  force 
of  a  deed  of  defeasance  or  other  instrument  for  that  purpose,  the 
original  conveyance  is  not  thereby  defeated  or  affected  as  against 
any  person  other  than  the  maker  of  the  defeasance,  or  his  heirs 
or  devisees,  or  persons  having  actual  notice  thereof,  unless  the  in- 
strument of  defeasance  shall  also  have  been  duly  recorded.^ 

526.  Wyoming  Territory.^  —  Mortgages  and  other  convey- 
ances are  recorded  in  the  office  of  the  register  of  deeds  of  the 
county  where  the  land  lies  within  three  months  of  the  date  of  the 
instrument.  The  instrument  when  recorded  is  notice  to,  and 
takes  precedence  of,  any  subsequent  purchaser  or  purchasers,  from 
the  time  of  delivering  the  instrument  at  the  office  of  the  register 
of  deeds  for  record.''^ 

When  a  deed  purports  to  be  an  absolute  conveyance  in  terms, 


commissioner,  or  cousul  of  the  United 
States  appointed  to  reside  therein.  Kev. 
Stat.  1871,  pp.  1143,  1144. 

A  married  woman  maj^  bar  her  dower, 
or  convey  her  separate  estate,  by  joining 
iu  the  deed  with  her  husband.  No  sepa- 
rate examination  is  necessary  in  taking 
her  acknowledgment.  Rev.  Stat.  1871,  p. 
1145. 

Form  of  certificate  :  — 

State  of  ,  County  of  ,  ss.  On 
this  day  of  ,  A.  D.  18  ,  before  me 
(name  and  title),  personally  came  and 
his  wife,  to  me  personally  known  to 
be  the  persons  who  signed  the  foregoing 
deed,  and  severally  acknowledged  the  ex- 
ecution of  the  same  to  be  their  free  act 
and  deed  for  the  uses  and  purposes  therein 
described. 

(Seal.)  (Signature  and  title.) 

1  Rev.  Stat.  1871,  p.  1147. 

2  lb.  p.  1149. 

3  Wyoming  Territory.  —  Acknowl- 
edgments within  the  territory  are  made  be- 
fore any  judge  or  commissioner  of  a  court 
of  record,  a  notary  public,  or  justice  of  the 
peace.     When  deeds  and  mortgages   are 


executed  in  any  other  state,  territory,  or 
district  of  the  United  States,  they  may  be 
executed  and  acknowledged  according  to 
the  laws  of  such  state,  territory,  or  district, 
before  any  officer  authorized  by  its  laws 
to  take  acknowledgments  therein,  or  before 
any  commissioner  appointed  by  the  gov- 
ernor of  this  territory  for  that  purpose. 
When  the  acknowledgment  is  not  made  be- 
fore such  commissioner,  a  certificate  must 
be  attached  of  the  clerk  of  a  court  of 
record  of  the  county  or  district  where  the 
acknowledgment  is  taken,  under  the  seal 
of  his  office,  of  the  official  character  of  the 
officer  who  took  the  acknowledgment,  of 
the  genuineness  of  his  signature,  and  that 
the  execution  is  accordiug  to  the  laws  of 
such  state,  territory,  or  district.  Compiled 
Laws,  1876,  c.  3,  §§  8-10. 

Dower  and  curtesy  are  abolished.  In 
a  conveyance  of  the  wife's  separate  estate 
the  husband  must  join,  but  the  wife  ex- 
ecutes and  acknowledges  the  deed  as  if  she 
were  sole.     lb.  c.  3,  §§  2,  11  ;  c.  42,  §  1. 

The  form  of  certificate  given  for  Wis- 
consin is  sufficient  for  this  territory. 

4  Compiled  Laws,  1876,  c.  40. 
397 


§§  527,  528.]      REGISTRATION   AS   AFFECTING   PRIORITY. 

but  is  made  or  intended  to  be  made  defeasible  by  force  of  a  deed 
of  defeasance,  or  other  instrument  for  that  purpose,  the  original 
conveyance  is  not  thereby  defeated  or  affected  as  against  any  per- 
son other  than  the  maker  of  the  defeasance,  or  his  heirs  or  devi- 
sees, or  jDcrsons  having  actual  notice  thereof,  unless  the  instru- 
ment of  defeasance  has  been  recorded  in  the  office  of  the  register 
of  deeds  for  the  county  where  the  lands  lie.^ 

3.  Requisites  as  to  Execution  and  Acknowledgmeyit. 

527.  Generally.  —  The  first  requisite  to  the  valid  record  of 
any  instrument  is  that  it  shall  be  executed  according  to  law.  If 
defectively  executed  it  is  not  generally  entitled  to  be  recorded ; 
but  even  if  it  is  recorded  it  is  not  constructive  notice,  so  as  to 
vest  in  the  grantee  or  mortgagee  any  interest  in  the  premises  as 
against  subsequent  purchasers  in  good  faith  without  notice.  As 
between  the  parties,  as  already  noticed,  equity  will  give  the  in- 
strument effect  according  to  the  intention  of  the  parties.^  If  a 
mortgage  defectively  executed  be  afterwards  reformed,  it  will  not 
affect  the  lien  of  one  who  has  in  the  mean  time  purchased  in  good 
faith,  and  according  to  some  authorities  will  not  affect  a  lien  ob- 
tained in  the  mean  time  by  an  attachment,  or  judgment,  or  a  levy 
of  execution. 

628.  Description.  —  The  description  of  the  property  upon 
which  the  mortgage  is  an  incumbrance  must  be  such  as  reasonably 
to  enable  subsequent  purchasers  to  identify  the  land ;  otherwise 
the  record  of  the  mortgage  is  not  notice  of  any  incumbrance  upon 
it.3  If  a  subsequent  mortgagee  or  purchaser  has  notice  of  a  mis- 
take in  the  description  of  a  prior  mortgage,  as,  for  instance,  that 
the  lot  was  described  as  number  "  eighteen,"  when  "  eight "  was 
the  correct  number  of  it,  the  second  mortgagee  will  take  subject  ^ 
to  the  prior,  in  the  same  way  that  he  would  had  the  description 
been  correctly  given. ^ 

A  mortgage  described  certain  lots  by  a  town  plat  which  was  not 
recorded,  but  a  plat  was  subsequently  recorded,  upon  which  the 

1  lb.  c.  3,  §  16.  25  111.  583.     See,  also,  Ripley  v.  Harris,  3 

2  Van  Thorniley  v.  Peters,  26  Ohio  St.  Biss.  199,  as  to  the  interest  in  the  land 
471.  mortgaged. 

^  See  §§  65,  66.    Barrows   v.  Baugh-        *  Warburton    v.    Lauman,    2    Greene 
man,  9  Mich.  213;  Rodgers  «.  Kavanaugh,     (Iowa),  420. 
398 


REQUISITES  AS   TO   EXECUTION  AND   ACKNOWLEDGMENT.     [§§  529-531. 

same  lots  were  described  by  different  numbers.  It  was  held  that 
the  absence  from  the  record  of  the  town  plat  at  the  time  of  record- 
ing the  mortgage  was  not  enough  to  put  the  purchaser  upon  in- 
quiry, and  make  him  chargeable  with  these  facts  ;  and  that  there- 
fore he  was  not  affected  with  constructive  notice  of  the  mortgage.^ 

629.  Apparent  error  in  description.  —  When  a  description 
in  a  mortgage  is  erroneous,  and  it  is  apparent  what  the  error  is, 
the  record  is  constructive  notice  of  the  mortgage  upon  the  lot  in- 
tended to  be  described.^  And  so  the  record  of  a  deed,  describinsf 
the  premises  by  an  impossible  sectional  number,  is  sufficient  to 
put  a  purchaser  from  the  same  grantor  upon  inquiry,  and  may 
charge  him  with  notice  of  the  grant  actually  made  or  intended  ^to 
be  made.^ 

But  although  a  mistake  in  description  be  such  that  the  mort- 
gage lien  would  be  invalidated  as  against  a  subsequent  purchaser, 
yet  it  has  been  held  that  a  subsequent  judgment  lien  will  not  for 
this  reason  become  a  paramount  lien  upon  the  land  intended  to  be 
described."*  Even  where  a  parcel  of  land  which  the  parties  in- 
tended to  include  in  the  mortgage  was  wholly  omitted  in  the  de- 
scription, the  deed  may  be  reformed  in  chancery,  and  the  omitted 
tract  included  in  the  mortgage  free  from  any  judgment  lien  which 
has  in  the  mean  time  attached  to  the  debtor's  real  estate,^ 

530.  Signing.  —  The  record  of  a  mortgage  without  the  signa- 
ture of  the  mortgagor  is  not  constructive  notice,  though  the  mort- 
gage was  in  in  fact  signed,  but  the  signature  was  omitted  by 
mistake  from  the  record.^ 

531.  Requirement  of  seal."  —  A  mortgage,  like  other  convej'- 

1  Stewart  v.  HufF,  19  Iowa,  557.  '  The  following  is  a  summary  of  the 

2  Anderson  v.  Baughman,  7  Mich.  69  ;  laws  of  the  several  states  in  relation  to 
Tousley  v.  Tousley,  5  Ohio  St.  78.  seals  :  — 

8  Merrick  v.  Wallace,  19  111.  486,  498.  Alabama:  Seal  not  necessary.     If  the 

*  Welton    V.    Tizzard,    15   Iowa,   495  ;  instrument  purports  to  be  under  seal,  it  is 

Swarts  V.  Stees,  2  Kans.  236 ;  Gillespie  v.  the  same  in  effect  as  if    a  seal  were  af- 

Moon,  2  Johns.  (N.  Y.)  Ch.  584,  per  Kent,  fixed.     Code,  1867,  §  1585. 

Chancellor ;  White  v.  WUson,  6  Blackf .  Arkaxsas  :  Seals  not  required. 

(Ind.)  448.  California:    All  distinction  between 

^  White  V.  Wilson,  supra.  sealed  and  unsealed  instruments  is  abol- 

^  See  §81.    Shepherd  i;.  Burkhalter,  13  ished.     Civil  Code,  1872,  §  1629. 

Ga.  443. 

399 


§  531.] 


REGISTRATION   AS    AFFECTING   PRIORITY. 


ances,  must  generally  be  executed  under  seal  to  entitle  it  to  be 
recorded. 1  In  several  states  the  use  of  a  seal  has  been  wholly- 
dispensed  with  by  statute.  In  others  a  scroll  is  given  the  same 
effect  as  a  seal.  But  where  the  use  of  a  seal  or  of  its  equivalent 
is  required,  an  instrument  purporting  to  be  a  mortgage,  but  not 
executed  under  seal,  is  not  entitled  to  be  recorded  ;  and  if  it  be 
copied  into  the  records,  it  does  not  impart  notice  to  subsequent 


Colorado  :  A  scroll  answers  the  place 
of  a  seal. 

Connecticut:  A  seal  is  necessary ;  but 
the  word  "seal "or  the  letters  [l.  s.]  are 
equivalent.     Gen.  Stat.  1875,  p.  438. 

Dakota  Territory  :  A  seal  or  scroll. 

Delaware  :  A  scroll  answers  for  a 
seal. 

Florida  :  A  scrawl  inclosing  tlie  word 
"  seal  "  is  effectual  as  such.     2  Fla.  421. 

Georgia  :  A  seal  includes  impressions 
on  the  paper  itself,  or  on  wax  or  wafers; 
a  scrawl  also  answers  for  a  seal.  Code, 
1873,  §  5. 

Illinois  :  A  seal  is  required,  but  a 
scroll  is  sufficient. 

Idaho  Territory  :  Seal  required. 

Indiana  :  A  seal  or  scrawl  not  requisite. 

Iowa  :  Seal  not  required. 

IvANSAS  :  Neither  a  seal  or  a  scroll  is 
necessary.     Dassler's  Stat.  1876,  §  637. 

Kentucky  :  Neither  a  seal  nor  a  scroll 
is  necessary.     Gen.  Stat.  1873,  p.  249. 

Louisiana  :  No  seal  or  scroll  is  re- 
quired. 

Maine  :  A  seal  is  requisite. 

Maryland  :  A  scroll  answers  the  place 
of  a  seal. 

Massachusetts  :  A  seal  is  requisite. 

Michigan  :  A  scroll  answers  for  a  seal, 
but  a  deed  is  not  invalid  for  want  of  a 
seal  or  scroll. 

Minnesota  :  A  seal  is  necessary,  but 
a  scroll  has  same  effect.  Rev.  1866,  p.  332. 

Mississippi  :  A  scroll  answers  for  a 
seal. 

Missouri  :  A  scrawl  may  be  used  in- 
stead of  a  seal. 

Montana  Territory  :  No  seal  or 
scroll  required.    Laws  1876,  p.  126. 

Nebraska  :  No  seal  or  scroll  necessary. 
Gen.  Stat.  1873,  p.  1001. 

400 


Nevada  :  A  scroll  answers  for  a  seal. 

New  Hampshire  :  A  seal  is  required. 
Scroll  not  sufficient. 

New  Jersey  :  A  seal  required  ;  a  scroll 
is  sufficient. 

New  Mexico:  A  scroll  may  be  used 
instead  of  a  seal. 

New  York  :  A  seal  is  requisite.  A 
scroll  will  not  do. 

North  Carolina  :  A  scroll  answers 
for  a  seal. 

Ohio  :  A  seal  may  be  either  of  wax, 
wafer,  or  a  scrawl. 

Oregon  :  A  scroll  answers  for  a  seal. 

Pennsylvania  :  An  ink  scroll  is  a  good 
seal. 

Rhode  Island  :  Seal  required.  Scroll 
not  sufficient. 

South  Carolina  :  A  scroll  answers  for 
a  seal. 

Tennessee  ;  Seals  abolished. 

Texas  :  No  seal  necessary.  Paschal's 
Dig.  art.  5087. 

Vermont  :  A  seal  is  requisite. 

Utah  Territory  :  A  scroll  may  be 
used  for  a  seal. 

Virginia  :  A  scroll  operates  as  a  seal. 

West  Virginia  :  A  scroll  operates  as 
a  seal. 

Wisconsin  :  A  scroll  answers  as  a 
seal. 

Washington  Territory  :  A  seal  is 
required. 

Wyoming  Territory:  A  scroll  is  a 
sufficient  seal.  Compiled  Laws,  1876,  c.  3, 
§22. 

1  See  §  81.  Hebron  v.  Centre  Harbor,  11 
N.  H.  571  ;  Bowers  i'.  Oyster,  3  Pa.  239  ;  In 
re  St.  Helen  Mill  Co.  3  Sawyer,  88.  And 
see  Woods  v.  Wallace,  22  Pa.  St.  171  ; 
Hughes  V.  Tong,  1  Mo.  389  ;  Moore  v. 
Madden,  7  Ark.  530. 


REQUISITES   AS   TO   EXECUTION   AND   ACKNOWLEDGMENT.       [§  532. 

purchasers  or  incumbrancers.^  Such  an  instrument,  however,  will 
operate  as  an  equitable  mortgage,  and  will  prevail  against  a  sub- 
sequent agreement  to  give  a  mortgage.^ 

532.  Requirement  of  witnesses.-^  —  The  record  of  a  mortgage 


1  Eacouillat  v.  Sansevain,  32  Cal.  376. 

2  Portwood  V.  Outton,  3  B.  Mon.  (Ky.) 
247. 

s  The  following  is  a  summary  of  the 
statutory  requirements  of  the  several  states 
in  respect  to  witnesses  :  — 

Alabama  :  If  acknowledged,  no  witness 
necessary ;  but  to  release  dower  and  to 
prove  without  acknowledgment,  two  wit- 
nesses must  attest.     Code,  1867,  p.  363. 

Arkaksas  :  Two  witnesses  required. 
Dig.  of  Stat.  1858,  p.  265. 

California  :  No  witness  is  necessary. 

Colorado  :  No  witness  required. 

Connecticut  :  To  be  attested  by  two 
witnesses. 

Dakota  Territory  :  No  witness  nec- 
essary. 

Delaware  :  One  witness  necessary. 

Florida  :  Two  witnesses  required. 
Bush's  Dig.  148  ;  Laws  1873,  p.  18. 

Idaho  Territory  :  Witness  neces- 
sary only  to  prove  without  acknowledg- 
ment. 

Georgia  :  Two  witnesses,  of  whom  one 
should  be  the  officer  who  takes  the  ac- 
knowledgment. 

Illinois  :  No  witness  required. 

Indiana  :  No  witness  required. 

Iowa  :  No  witness  required. 

Kansas  :  No  witness  required,  except  to 
make  proof  of  deed. 

Kentucky  :  Two  witnesses  required  to 
prove  a  deed  not  acknowledged. 

Louisiana  :  Two  witnesses  are  re- 
quired. 

Maine  :  No  witness  necessary,  but  one 
is  usual. 

Massachusetts  :  No  witness  necessary, 
but  one  is  usual. 

Maryland  :  To  be  attested  by  at  least 
one  witness.     Code,  1860,  art.  24,  §  10. 

Michigan  :  To  be  executed  in  presence 
of  two  witnesses.  Compiled  Laws,  p.  1342. 
vol.  I.  26 


Minnesota  :  To  be  attested  by  two 
witnesses.     Laws  1867,  p.  59. 

Mississippi  :  One  or  more  subscribing 
witnesses.     Code,  1871,  p.  503. 

Missouri  :  No  witness  required. 

Montana  Territory:  Witness  only 
necessary  to  make  proof  without  acknowl- 
edgment. 

Nevada  :  No  witness  required.  When 
signature  is  by  mark,  one  is  necessary. 

Nebraska  :  One  witness  required. 

New  Hampshire  :  Two  or  more  wit- 
nesses required.     Gen.  Stat.  1867,  p.  251. 

New  Jersey  :  One  witness  necessary. 

New^  York  :  One  witness  necessary. 

North  Carolina  :  Witness  not  re- 
quired when  acknowledged,  but  one  or 
more  to  prove  without. 

Ohio  :  Two  witnesses  are  requisite. 

Oregon  :  Two  witnesses  required  for  a 
deed  made  within  the  state. 

Pennsylvania  :  One  or  more  witnesses 
usual,  but  not  necessary,  unless  grantor 
signs  by  mark. 

Rhode  Island  :  No  witness  neces- 
sary. 

South  Carolina  :  Two  witnesses  re- 
quired.    Rev.  Stat.  1873,  p.  423. 

Tennessee  :  No  witness  required  when 
deed  is  acknowledged. 

Texas  :  No  witness  required  when  ac- 
knowledged.    Two  to  prove. 

Utah  Territory  :  One  witness  or 
more. 

Vermont  :  Two  witnesses  required. 

Virginia  :  Two  witnesses  required  to 
prove,  but  none  when  acknowledged. 

West  Virginia  :  No  witness  required 
when  acknowledged.  Two  to  prove  with- 
out. 

Washington  Territory  :  Two  wit- 
nesses required. 

Wisconsin  :   Two  witnesses  required. 
Rev.  Stat.  1871,  p.  1043. 
401 


§  533.]  REGISTRATION  AS    AFFECTING    PRIORITY. 

not  executed  in  compliance  with  a  statute  requiring  that  it  shall 
be  attested  by  two  witnesses  is  not  constructive  notice,^  though 
the  defect  be  not  apparent  on  the  face  of  the  instrument,  one  of 
the  witnesses  being  the  grantor's  wife.^  Upon  the  same  principle 
the  record  of  a  mortgage  acknowledged  before  one  justice  of  the 
peace,  when  a  statute  required  it  to  be  made  before  two  justices, 
does  not  operate  as  notice.^  But  a  mortgage  attested  by  one  wit- 
ness under  such  a  statute  is  good  in  equity  between  the  parties,* 
and  as  against  all  others  whether  purchasers  or  creditors,  who  had 
actual  notice  of  the  existence  of  the  mortgage.^  When  a  statute 
provides  that  a  deed,  to  be  recordable,  shall  be  attested  by  two 
witnesses,  and  a  mortgage  so  witnessed  was  by  mistake  recorded 
without  any  copy  of  the  attestation,  it  was  held  that  the  registry 
was  not  constructive  notice.  The  recording  of  the  instrument 
not  being  in  compliance  with  the  law,  the  registration  is  a  mere 
nullity  ;  and  a  subsequent  purchaser  is  affected  only  by  such 
actual  notice  as  would  amount  to  a  fraud.^ 

533.  Acknowledgment  or  proof  a  prerequisite  to  the  rec- 
ord. —  The  recording  acts  generally  prescribe  certain  formalities 
in  the  execution  of  a  deed  which  must  be  complied  with  to  entitle 
it  to  be  recorded.  An  acknowledgment  or  proof  of  the  deed  be- 
fore some  officer  is  an  essential  prerequisite.  Without  an  acknowl- 
edgment, or  with  one  that  is  defective,  the  record  of  the  deed  is 
unauthorized  and  is  not  constructive  notice.'^  The  purpose  of  this 
requirement  is  to  insure  the  authenticity  of  the  instrument  before 

Wyoming  Territory  :  Two  witnesses        ^  Sanborn  v.  Eobinson,  54  N.  H.  239  ; 

required.    Compiled  Laws,  1876,  ch.  3,  §  8.  Hastings  v.  Cutler,  supra. 

1  See  §  82 ;    Thompson  v.   Morgan,  6        ^  Pringle  v.  Dunn,  37  Wis.  449. 
Minn.  292  ;  Harper  v.  Barsh,  10  Rich.  (S.         ^  See  §   83  ;    Blood  v.  Blood,  23  Pick. 

C),  Eq.  149  ;  New  York  Life  Ins.  &  Trust  (Mass.)  472  ;  Wood  v.  Cockrane,  39  Vt. 

Co.  V.  Staats,  21  Barb.  570;  Van  Thor-  544;  Frost  v.  Beekman,  1  Johns.  (N.  Y.) 

niley  v.  Peters,  26  Ohio  St.  471  ;  Gardner  Ch.  288  ;  Work  v.  Harper,  24  Miss.  517  ; 

V.   Moore,  51    Ga.  268;   Ross  i>.  Worth-  Dufphey  v.  Frenaye,  5   St.  &  P.    (Ala.) 

ington,  11  Minn.  438;  White  «.  Denman,  215;   Parret  v.  Shaubhut,  5  Minn.  323; 

16  Ohio,  59;  1  Ohio  St.  110;  Hodgson  v.  Jacoway  y.Gault,  20  Ark.  190;  White  v. 

Butts,  3Cranch,  140.  Denman,    1     Ohio    St.    110;    Bishop    v. 

"  Carter  v.  Champion,  8  Conn.  549.  Schneider,  46   Mo.   472  ;   Jones  v.   Berk- 

3  Dufphey  V.  Frenaye,  5  St.  &  P.  (Ala.)  shire,   15   Iowa,  248;    and   see   White  & 

215;    and   see   Munn   v.   Lewis,   2   Port.  Tudor's  Lead.  Cas.  in  Eq.  4th  Am.  ed.  vol. 

(Ala.)  24.  2d,  pt.  6,  p.  206. 

*  Moore  v.  Thomas,   1    Oregon,   201  ; 
Hastings  v.  Cutler,  24  N.  H.  481. 
402 


REQUISITES    AS   TO   EXECUTION   AND   ACKNOWLEDGMENT.       [§  534. 

admitting  it  of  record.  The  certificate  must  be  made  and  attested 
substantially  in  the  form  given  by  statute,  or  where  no  special 
form  is  prescribed,  then  in  accordance  substantially  with  the  pro- 
visions of  the  statute  respecting  it ;  but  it  need  not  be  in  the 
exact  words  of  the  form  or  of  the  statute.-^  When  a  statute  re- 
quires the  acknowledgment  of  a  married  woman  to  be  taken  sep- 
arate and  apart  from  her  husband,  the  record  is  no  notice  of  a 
lien  on  her  estate  unless  the  acknowledgment  is  so  taken.^ 

If  the  acknowledgment  be  by  an  agent,  the  certificate  should 
show  with  reasonable  clearness  that  the  acknowledgment  was 
made  on  the  behalf  of  the  constituent  or  as  being  his  deed.^  A 
mortgage  recorded  without  having  been  acknowledged  creates  no 
valid  lien  as  against  creditors  and  subsequent  purchasers,  whether 
they  have  actual  notice  of  the  mortgage  or  not ;  but  it  is  good  as 
between  the  parties,  and  on  breach  of  the  condition  of  payment 
may  be  enforced  against  the  mortgagor,  and  on  his  death,  against 
his  administrator  in  preference  to  his  general  creditors.'* 

534.  The  officer  must  be  duly  appointed  and  qualified.  — 
The  registration  of  a  mortgage,  acknowledged  or  proved  before  an 
officer  who  has  not  been  duly  appointed  or  qualified,  has  no  effect 
in  rendering  it  operative  against  subsequent  purchasers.^  It  is 
equally  necessary  that  the  officer  should  act  within  the  limits  of 
his  jurisdiction.*^  A  judge,  or  commissioner,  or  other  officer  em- 
powered to  take  an  acknowledgment,  cannot  act  out  of  the  state 
for  which  he  was  appointed,^ 

When,  however,  acknowledgments  made  before  an  officer  not 
authorized  to  act  are  by  statute  declared  to  be  good  and  effectual, 
in  the  same  way  that  they  would  have  been  had  they  been  taken 
and  certified  by  an  officer  properly  qualified,  one  purchasing  after 

1  Alvis  w.  Morrison,  63  111.  181  ;  Meriam        '^  Jackson   v.   Golden,  4   Cow.   (N.  Y.) 
V.  Ilarsen,  2  Barb.  (N.  Y.)  Ch.  232  ;  Duval     266. 

u.  Covenhoven,  4  Wend.  (N.  Y.)  561.  "  Jackson   v.  Humphrey,  1   Johns.  (N. 

2  Armstrong    v.   Ross,    20    N.   J.   Eq.  Y.)  498.    A  certificate  of  acknowledgment 
109.  in  wiiich  the  officer  describes  himself  as 

3  McDaniels  v.  Flower  Brook    M.  Co.  "  a  justice  of  the  peace  within   and  for 
22  Vt.  274.  said  county,"  no  county  being  named,  ex- 

■*  Haskill  V.  Sevier,  25  Ark.  152;  Main     cept  that  in  the  body  of  the  deed,  where 
V.  Alexander,  9  Ark.  112.  both  the  grantor  and  grantee  resided,  is 

5  Gudderette  I'.  Smyth,  13  Ircd.  (N.  C.)     not  necessarily  invalid.    Beckel   v.   Petti- 
L.  452.  crew,  6  Ohio  St.  247  ;  Fulirman  v.  Lou- 

don, 13  S.  &  R.  (Pa.)  386. 
403 


§§  535-537.]      REGISTRATION   AS   AFFECTING  PRIORITY. 

such  statute  has  gone  into  effect  is  bound  to  take  notice  of  the  con- 
veyance, though  until  that  time  the  record  would  be  notice  to  no 
one.^ 

535.  Taking  an  acknowledgment  is  a  ministerial  act ;  there- 
fore it  may  be  done  by  one  who  is  so  related  to  the  parties  as  to 
be  disqualified  as  a  judge  or  juror.^  It  has  been  held  that  a  mar- 
ried woman  may  acknowledge  a  mortgage  of  her  separate  estate 
before  her  husband,  he  being  a  justice  of  the  peace.^ 

536.  Requirement  of  certificate  of  official  character  of  of- 
ficer. —  In  like  manner,  when  a  statute  requires  that  the  certificate 
of  acknowledgment  shall  be  accompanied  by  a  certificate  of  the 
official  character  of  the  officer  before  whom  the  acknowledgment 
was  made,  the  filing  of  the  mortgage  for  record  without  the  latter 
certificate  does  not  constitute  a  record  of  it.  If,  however,  this 
certificate  is  subsequently  obtained  and  recorded  in  the  registry 
where  the  deed  is  recorded,  the  mortgage  will  be  treated  as 
recorded  from  the  date  of  the  filing  of  this  certificate.* 

537.  Requirement  that  officer  shall  certify  that  he  is  person- 
ally acquainted  with  grantor.  —  Upon  the  same  principle  also, 
when  a  statute  requires  that  the  officer  shall  certify  that  he  is  per- 
sonally acquainted  with  the  party  making  the  acknowledgment, 
the  omission  so  to  do  renders  null  the  acknowledgment  and  the 
record.^  The  requirement  must  be  substantially  complied  with.^ 
If  the  officer  taking  the  acknowledgment  certifies  that  he  knows 
the  parties  by  whom  the  instrument  purports  to  be  executed, 
when  in  fact  he  did  not,  his  certificate,  though  primd  facie  valid, 
upon  proof  of  this  fact  is  a  nullity,  both  as  entitling  the  paper  to 
be  recorded  and  as  affording  any  proof  of  its  execution,  though  in 
fact  the  instrument  was  acknowledged  by  the  persons  who  exe- 

1  Journeay  v.  Gibson,  56  Pa.  St.  57.  the  court  upon  the  exhibition  of  the  deed 

2  Lynch  v.  Livingston,  6  N.  Y.  422.  took  notice  of  the  defect.     See,  also,  John- 

3  Kimball  v.  Johnson,  14  Wis.  674.  son  r. Walton,!  Sneed  (Tenn.),  258;  Bone 
*  Eeasoner  v.  Edmundson,  5  Ind.  393;  v.  Greenlee,  1  Cold.  (Tenn.)  29  ;  Thurman 

Ely  V.  Wilcox,  20  Wis.  523.  v.  Cameron,  24  Wend.  (N.  Y.)  87  ;  Living- 

5  Kelsey  v.  Dunlap,  7  Cal.  160 ;  Peyton  ston  v.  Ketelle,  6  111.  116. 
r.   Peacock,  1   Humph.  (Tenn.)   135.     In         «  Ritter  i;.  Worth,  58  N.  Y.  627;  West 

this  case,  although  the  improper  registra-  Point  Iron  Co.  v.  Reymert,  45  N.  Y.  703 ; 

tion  was  not  insisted  upon  by  the  answer,  Troup  v.  Haight,  Hopk.  (N.  Y.)  239. 

404 


REQUISITES   AS   TO   EXECUTION   AND   ACKNOWLEDGMENT.      [§  538. 

cuted  it.^    As  between  the  parties  themselves  the  mortgage  would, 
of  course,  be  valid  upon  proof  of  its  execution  and  delivery. 

A  certificate  of  acknowledgment  which  simply  describes  the 
persons  acknowledging  as  "  grantors  of  the  within  indenture," 
without  stating  that  they  were  known  to  the  officer  to  be  the 
same  persons  who  are  described  in  and  who  executed  it,  as  pre- 
scribed by  the  statute,  is  insufficient  to  entitle  the  deed  to  be  re- 
corded 2 

538.  The  certificate  of  acknowledgment  not  conclusive.  — 
A  certificate  of  acknowledgment  which  is  correct  in  form,  and  is 
apparently  executed  by  one  authorized  to  act  in  the  matter,  and 
within  his  jurisdictign,  is  sufficient  to  admit  the  deed  to  record, 
and  is  primd  facie  good ;  but  it  is  not  conclusive.^  It  may  be 
shown  that  the  officer  who  made  the  certificate  was  not  in  fact 
authorized  to  act,  or  had  become  incompetent,  or  that  he  acted 
outside  his  jurisdiction.*  It  may  be  shown  that  the  deed  was 
never  in  fact  executed  or  delivered.^  The  presumption  of  regular- 
ity must,  however,  be  first  overcome.  The  officer  is  jjrinid  facie 
such  as  he  is  described  to  be,  de  facto  and  de  jure.  He  is  like  an 
officer  authorized  to  take  testimony  under  a  special  commission. 
His  return  must  stand  until  it  is  impeached  by  collateral  proof. 
Until  this  is  done  his  return  is  proof  in  itself  of  his  official  charac- 
ter, of  his  signature,  and  of  his  acting  within  his  jurisdiction.*^ 

A  mistake  in  the  certificate  of  acknowledgment,  whereby  the 
grantee  instead  of  the  grantor  appeared  to  be  the  person  who 
made  the  acknowledgment,  cannot  be  corrected  in  a  court  of 
equity,  so  as  to  give  the  record  of  the  deed  legal  effect  from  the 
beginning,  because  it  cannot  be  determined  from  the  face  of  the 
instrument  whether  the  error  consisted  in  inserting  the  wrong 
name,  or  in  taking  the  acknowledgment  of  the  wrong  man.^     A 

1  Watson  V.  Caiiipl)ell,  28  Barb.  (N.  Y.)  "  Hardenbcrgh  v.  Schoonmaker,  4 
421.  "  This  case,"  says  Mr.  Justice  lugra-  Johns.  (N.  Y.)  161;  Morris  i-.  Keyos,  1 
ham,  "shows  the  impropriety  of  a  com-  Hill  (N.  Y.),  540;  People  v.  Snyder,  41 
missioner  of  deeds,  in  such  an  acknowl-  N.  Y.  397. 

edgment,   certifying    that   he   knows   the  *  Lynch  v.  Livingston,  6  N.  Y.  422. 

parties,  without  any  other  knowledge  than  ^  Jackson  v.  Perkins,  2  Wend.  (N.   Y.) 

a  mere  introduction,  or  seeing  the  sign  a-  308. 

ture  written.     He  thereby  endangers   the  ''  Thurman  v.  Cameron,  24  Wend.   (N. 

security,  and   exposes  himself  to  liability  Y.)  87,  and  cases  cited. 

for  damages  arising  therefrom."  7  Wood  v.  Cochrane,  39  Vt.  544. 

2  Fryer  v.  Rockefeller,  63  N.  Y.  268. 

405 


§  538.]  REGISTRATION   AS   AFFECTING   PRIORITY. 

mistake  in  the  date  of  an  acknowledgment  may  be  sliown  and  the 
true  date  established.^ 

As  to  the  statements  of  fact  contained  in  a  certificate  of  ac- 
knowledgment which  is  regular  in  form,  they  can  only  be  im- 
peached for  fraud.  Evidence  which  is  merely  in  contradiction  of 
the  facts  certified  to  will  not  be  received.  If,  for  instance,  the 
certificate  shows  that  a  married  woman  was  examined  separate  and 
apart  from  her  husband,  and  voluntarily  relinquished  her  rights  of 
dower  and  homestead  in  the  lands,  it  cannot  be  impeached  by 
evidence  that  there  was  no  private  examination  ;  that  she  did  not 
acknowledge  the  deed  as  her  act  and  deed  ;  that  the  contents  of 
the  deed  were  not  made  known  to  her  ;  or  that  she  did  not  re- 
lease her  homestead  right.  There  must  first  be  some  allegation 
and  proof  of  fraud  or  imposition  practised  upon  her ;  or  some 
fraudulent  combination  between  the  parties  interested  and  the 
officer  taking  the  acknowledgment. ^  There  would  be  no  certainty 
in  titles  if  the  officer's  certificate  could  be  contradicted  by  any 
other  evidence.  The  law  directs  him  to  make  his  certificate  in 
writing,  and  when  he  has  made  it  the  world  is  to  look  to  that  and 
to  nothing  else.^  Parol  evidence  can  only  be  admitted  to  show 
fraud  or  duress  connected  with  the  acknowledgment ;  not  to  con- 
tradict the  officer's  certificate.* 

The  exception,  that  the  magistrate's  certificate  is  not  conclusive 
of  the  facts  stated  in  it  when  fraud  is  shown,  does  not,  however, 
extend  to  the  case  of  one  who  has  in  good  faith  purchased  without 
notice  of  the  fraud  ;  he  is  protected  by  the  record  notwithstanding 
the  fraud.^  If  he  has  actual  knowledge  of  fraud  or  duress  in 
obtaining  a  wife's  acknowledgment  to  a  deed,  or  knowledge  of 
such  circumstances  as  would  naturally  lead  him  to  inquiry,  he  is 
deprived  of  the  protection  accorded  to  an  innocent  and  bond  fide 
holder.  Even  less  than  actual  duress  will  avoid  a  wife's  acknowl- 
edgment of  a  mortgage  in  the  hands  of  an  assignee  who  ought  to 
have  inquired  for  defences  and  did  not.     It  is  enough  if  it   be 

1  Hoit  V.  Russell,  56  N.  H.  559.  ^  Per  Tilghman,  C.  J.,  in  Jourdan  v. 

2  Hceter  v.  Glasgow,  79  Pa.  St.  79;  Jourdan,  9  Serg.  &  R.  (Pa.)  268;  and 
Graham  ?;.  Anderson,  42  111.   514;  Mon-     see  Graham  v.  Anderson,  42  111.  514. 

roe  V.  Poorman,  G2  111.   523;  Jamison  v.        *  Heeter  v.  Glasgow,  79  Pa.  St.  79. 
Jamison,    3    Whart.   (Pa.)   457  ;  Ridgely        ^  Heeter  v.  Glasgow,    79   Pa.    St.    79  ; 
V.  Howard,  3  Harris  &  McHenry  (Md.),    Hall  v.  Patterson,  51  Pa.  St.  289. 
321  ;    Hartley  v.  Frosh,    6    Texas,    208 ; 
M'Neely  v.  Rucker,  6  Blackf.  (Ind.)  391. 
406 


REQUISITES   AS   TO   EXECUTION   AND   ACKNOWLEDGMENT.      [§  539. 

shown  that  she  did  it  under  moral  constraint,  as  for  instance  by 
threats,  persecution,  and  harshness  on  the  part  of  her  husband. 
These  facts  being  known  to  the  mortgagee  his  assignee  is  affected 
by  them,  in  case  he  is  not  entitled  to  the  protection  accorded  to 
one  who  takes  negotiable  paper  for  value  before  maturity.  He 
should  inquire  of  the  mortgagors  whether  the  mortgage  is  open  to 
any  defence.^ 

539.  Delivery  is  another  incident  necessary  to  giving  effect  to 
the  mortgage  even  as  between  the  parties  to  it.'-^  Although  the 
deed  be  recorded,  if  it  has  not  been  delivered,  a  subsequent  con- 
veyance by  the  mortgagor,  or  a  subsequent  judgment  against  him, 
will  take  precedence.^ 

The  fact  of  the  acknowledgment  of  the  deed  at  a  certain  date 
is  not  by  itself  evidence  that  the  mortgage  was  delivered  at  that 
time,  or  was  ever  delivered,*  though  this  has  been  said  to  be  pre- 
sumptive evidence.^  The  record  of  the  mortgage  is  said  to  be  evi- 
dence of  delivery  in  a  greater  degree,  but  it  is  not  conculsive  of  a 
delivery.  It  has  sometimes  been  spoken  of  as  primd  facie  evidence 
of  delivery.^     It  may  be  evidence  for  the  jury  to  consider.'^ 

But  registration  itself  does  not  operate  as  a  delivery  ;  nor  does 
it  supersede  the  necessity  of  proof  of  a  delivery.^  A  delivery  of 
the  mortgage  to  the  register  for  record  may  be  an  effectual  de- 
livery to  the  mortgagee,  where  such  deliverj'^  is  made  at  the  re- 
quest of  the  mortgagee,^  or  the  register  had  authority  from  him 
to  receive  it  and  keep  it. 

Of  course,  a  delivery  to  an  agent  of  the  mortgagee  is  a  de- 
livery to  the  mortgagee  himself  ;  as  for  instance  a  delivery  to 
the  secretary  of  a  railroad  company  is  sufficient. ^^ 

1  McCandless  v.  Engle,  51  Pa.  St.  309  ;  ^  Kille  v.  Efre,  79  Ta.  St.  15 ;  Jackson 
Michcnor  v.  Cavender,  38  lb.  337  ;  Twitch-    v.  rerkins,  2  Wend.  (N.  Y.)  308. 

ell  V.  McMurtrie,  77  lb.  383.  "   Jordan     v.      Farnsworth,    15     Gray 

2  Hoadley  r.  Hadley,  48  Ind.  452  ;  Free-     (Mass.),  517. 

man  v.  Peay,  23  Ark.  439;   Maynard  v.  ^  Hawkes    v.    Pike,    105    Mass.     560; 

Maynard,  10  Mass.  456.  Parker  v.  Hill,  8  Met.  (Mass.)  447;  Foley 

8  Woodbury   v.   Fisher,   20   Ind.   387  ;  v.  Howard,  8  Iowa,  56. 

Goodsell  V.  Stinson,  7  Blackf.  (Ind.)  437.  ^  Dusenbury  r.  Hulbert,  2  Thonip.  &  C. 

*  Freeman  v.    Schroeder,  43  Barb.  (N.  (N.  Y.)  177  ;  Thayer  v.   Stark,  6    Cush. 

Y.)   618;  29   How.   Pr.   263;   Jackson  v.  (Mass.)  11,  14. 

Richards,  6  Cow.  (N.  Y.)  617.  "  Patterson  v.  Ball,  19  Wis.  243  ;  Tru- 

6  Wyckoff  V.  Remsen,  11  Paige  (N.  Y.),  man  v.  McCollum,  20  lb.  360. 


564. 


407 


§  540.]  REGISTRATION   AS  AFFECTING   PRIORITY. 

540.  Delivery  after  recording.  —  Although  a  mortgage  is  of 
no  effect  until  there  has  been  a  delivery  of  it  to  the  mortgagee, 
yet  if  it  is  made  for  a  good  consideration,  as  for  instance  an  ex- 
isting debt,  and  is  filed  for  record  withont  delivery,  a  subsequent 
acceptance  of  the  deed  by  the  mortgagee  has  been  held  to  ratify 
the  making  and  recording  of  it,  and  to  give  it  legal  effect  from 
the  time  of  filing,  as  against  intermediate  incumbrances.^  When, 
for  instance,  one  in  debt  to  a  bank  executed  a  mortgage  to  it,  and 
without  delivering  it  sent  it  to  the  record  office  to  be  recorded, 
and  then  sent  word  to  the  officers  of  the  bank  of  the  execution 
of  the  mortgage,  and  that  they  could  get  it  of  the  recorder,  and 
they  replied  that  "they  were  glad  it  was  done,"  this  was  held  a 
sufficient  delivery  of  the  deed  to  the  bank  to  pass  the  title  as 
against  one  to  whom  the  mortgagor  made  and  delivered  another 
mortgage  of  the  same  property  two  days  afterwards,  but  after 
such  notification  to  the  bank  and  reply .^ 

A  delivery  may  be  made  to  a  stranger  in  behalf  of  the  mort- 
gagee, and  without  his  authority,  and  upon  his  subsequent  accep- 
tance of  the  mortgage,  the  title  is  regarded  as  having  vested  in 
him  from  the  time  of  such  delivery.  Such  was  held  to  be  the 
case  where  one  in  failing  circumstances  made  a  mortgage  to  a 
creditor  who  resided  out  of  the  state,  without  the  knowledge  of 
his  creditor,  and  delivered  it  to  his  own  attorney  for  the  benefit 
of  the  creditor,  with  the  request  that  the  attorney  should  cause 
it  to  be  recorded  and  handed  to  the  creditor.  The  mortgage  was 
accordingly  recorded,  and  afterwards  received  and  accepted  by  the 
mortgagee  ;  but  after  the  delivery  of  it  to  the  attorney  and  the 
recording  of  it,  but  before  the  attorney  had  delivered  it  to  the 
mortgagee,  the  property  was  attached  by  another  creditor  of  the 
mortgagor's.  It  was  held  that  the  mortgaged  estate  immediately 
vested  in  the  mortgagee,  whose  title  was  therefore  superior  to 
that  of  the  attaching  creditor.^ 

It  has  been  held,  moreover,  that  it  may  be  presumed  that  a 
mortgagee,  in  whose  favor  a  mortgage  has  been  executed  and 
placed  on  record,  will  assent  to  it  on  being  notified  of  its  exist- 
ence ;  and  therefore,  although  it  be  made  and  recorded  without 
his  knowledge,  and  the  land  is  afterwards  attached  by  creditors  of 
the  mortgagor  before  the  mortgagee  has  notice  of  the  mortgage, 

1  Carnall  v.  Duval,  22  Ark.  136.  3  Merrills  v.  Swift,  18  Conn.  257,  and 

^  Farmers',  &c.  Bank  v.  Drury,  38  Vt.  426.     cases  cited. 

408 


REQUISITES   AS   TO  EXECUTION   AND    ACKNOWLEDGMENT.       [§  541. 

"wbich  he  afterwards  assents  to  and  ratifies,  be  may  hold  the  mort- 
gage lien  against  such  attachments.^ 

541.  When  a  subsequent  delivery  becomes  operative.  — 
Although  a  deed  be  inoperative  at  the  time  it  is  recorded,  as  when 
it  is  recorded  before  delivery,  or  is  recorded  as  a  deed  when  in- 
tended as  a  mortgage,  and  the  statutes  of  the  state  where  it  is 
executed  require  that  it  shall  be  recorded  in  such  case  in  separate 
mortgage  books,  upon  a  subsequent  delivery  in  the  one  case,  and 
in  the  other  upon  a  purchase  of  the  equity  of  redemption  by  the 
mortgagee,  the  record  then  becomes  fully  operative.'-^  The  deliv- 
ery of  the  deed,  or  the  purchase  of  the  equity  of  redemption,  is 
equivalent  to  a  delivery  of  the  deed  for  record  at  that  time,  in  the 
same  way  as  when  a  deed  is  recorded  in  anticipation  of  the  com- 
pletion of  a  sale.  The  mortgage  is  effectual  only  from  the  time  of 
such  delivery,  and  any  one  who  has  in  the  mean  time  before  the 
delivery  obtained  a  lien  upon  the  property  has  a  preference  over 
such  mortgagee.  His  assent  to  the  mortgage  makes  the  mortgage 
valid,  and  the  record  of  it  notice  only  from  that  time.^  Where, 
for  instance,  a  mortgage  was  recorded  on  the  loth  day  of  May, 
1870,  and  was  held  by  the  mortgagor  ready  for  delivery  when  he 
should  obtain  a  loan,  and  was  not  delivered  until  the  7th  day  of 
the  following  month,  the  latter  date  was  held  to  be  the  d^e  of 
its  registry,  as  against  one  who  in  the  mean  time  had  acquired 
a  mechanic's  lien  upon  the  property. 

But  if  the  mortgage  be  executed  and  acknowledged,  and  put 
upon  record  by  the  mortgagor,  in  pursuance  of  a  prior  contract 
for  a  loan  upon  it,  which  is  afterwards  made  in  pursuance  of  the 
contract,  and  the  mortgage  is  then  delivered  upon  the  payment 
of  the  money,  it  has  priority  in  equity  over  liens  of  mechanics 
and  material  men,  for  work  and  materials  furnished  after  the 
mortgage  is  recorded  for  a  building  which  the  mortgagor  com- 
menced to  erect  upon  the  premises  after  the  recording  of  the  mort- 
gage and  before  its  delivery,  the  mortgagee  having  no  knowledge 
of  this  fact.  In  such  case  the  mortgage  upon  delivery  has  rela- 
tion to  the  agreement  for  the  loan,  and  the  registry  takes  effect 

1  Ensworth  v.  King,  50  Mo.  477.  Barb.  (N.  Y.)   505;  Jackson  v.  Richards, 

2  See  §§  85-87;  Warner  i^.  Winslow,  1  6  Cow-  (N.  Y.)  617  ;  Hood  v.  Brown,  2 
Sandf.  (N.  Y.)   Ch.  430.  Ohio,  266;  Mut.  Benefit  Life  Ins.  Co.  v. 

8  Foster  v.   Beardslcy    Scythe    Co.   47     Rowand,  26  N.  J.  Eq.  389. 

409 


§§  542,  543.]      REGISTRATION   AS   AFFECTING   PRIORITY. 

and  becomes  operative  as  constructive  notice  before  the  delivery, 
and  from  the  time  the  mortgage  was  left  for  record. ^ 

4.  Requisites  as  to  the  Time  and  Manner  of  Recordiiig. 

542.  The  record  is  notice  from  the  time  of  filing  the  deed 
for  record.  —  It  is  sometimes  provided  by  statute  that  a  mort- 
gage or  other  deed  shall  be  deemed  to  be  recorded  when  it  is  filed 
for  record,  or  noted  in  an  entry  book  by  the  recorder  as  received. 
But  aside  from  any  statutory  provision,  the  judicial  interpreta- 
tion of  the  effect  of  the  filing  is  the  same.^  The  mortgage  record 
dates  from  the  moment  it  is  left  for  record,  and  is  indorsed  by  the 
recorder  and  entered  upon  the  index  or  entry  book,  although  it  is 
not  actually  spread  upon  the  record  for  months,  or  any  length  of 
time  afterwards.^  It  may  be  kept  in  the  office  and  referred  to 
until  it  is  transcribed.  When  it  is  spread  upon  the  record,  how- 
ever, it  is  notice  of  only  what  appears  upon  the  record.  Errors 
in  transcribing  affect  the  holder  of  the  title,  and  not  one  who 
purchases  in  good  faith.* 

If  the  mortgage  be  left  at  the  registry  in  the  absence  of  the 
recorder,  and  it  is  received  and  filed  by  a  clerk  in  charge  of  the 
office,  the  filing  is  sufficient,  though  the  clerk  has  no  authority  to 
perform  the  duties  of  the  register.  It  is  the  duty  of  the  recording 
officer  to  enter  and  number  the  mortgage,  and  the  rights  of  the 
mortgagee  cannot  be  impaired  by  his  omission  to  do  so.^ 

543.  As  to  the  time  when  a  mortgage  deed  was  left  for  rec- 
ord, the  certificate  of  the  register  is  conclusive  as  between  the 
mortgagee  and  a  creditor  who  has  attached  the  mortgaged  land 
subsequently  to  the  time  stated  in  the  certificate.^    The  certificate 

1  Jacobus  V.  Mutual  Benefit  Life  Ins.  3  Wood's  Appeal,  82  Pa.  St.  116; 
Co.  27  N.  J.  Eq.  604.  The  doctrine  of  Kiser  v.  Heuston,  38  III.  252 ;  Franklin  v. 
relation  is  fully  considered  in  this  case.  Cannon,  1  Eoot  (Conn),  500;  Throch- 
See,  also,  Pratt  I'.  Potter,  21  Barb.  (N.  Y.)  mortou  v.  Price,  28  Tex.  605;  Brooke's 
589;  Judd  v.  Seekins,  62  N.  Y.  266;  S.  Appeal,  64  Pa.  St.  127;  Musser  v.  Hyde, 
C.  3T.  &C.  266.  2  W.  &S.  (Pa.)  314. 

2  Brooke's  Appeal,  64  Pa.  St.  127  ;  *  Terrell  v.  Andrew  County,  44  Mo. 
Kessler  v.  State,  24  Ind.  313  ;  Magee  v.  309  ;  Bishop  v.  Schneider,  46  Mo.  472. 
Beatty,  8  Ohio,  396  ;  Brown  v.  Kirkman,  ^  Dodge  v.  Potter,  18  Barb.  (N.  Y.)  193. 
1  Ohio  St.  116;  Fosdick  v.  Barr,  3  lb.  6  Tracy  v.  Jenks,  15  Pick.  (Mass.)  465  ; 
471 ;  Bloom  v.  Noggle,  4  lb.  45  ;  Tous-  Adams  v.  Pratt,  109  Mass.  59  ;  Fuller  v. 
ley  V.  Tousley,  5  lb.  78  ;  Bercaw  v.  Cock-  Cunningham,  105  Mass.  442  ;  Ames  v. 
erill,  20  lb.  163.  Phelps,  18  Pick.  (Mass.)  314. 

410 


REQUISITES    AS   TO   TIME   AND    MANNER   OF   RECORDING.       [§  544. 

is  not,  however,  conclusive  of  anything  beyond  the  time  of  the 
receipt  of  the  instrument  for  record,  as  for  instance  it  is  not  con- 
clusive that  it  is  duly  recorded.^ 

When  the  time  of  receiving;  a  mortfjasre  for  record  as  entei'ed  in 
the  index  book  shows  upon  its  face  that  it  was  not  made  at  the 
time  of  such  reception,  the  presumption  of  the  correctness  of  the 
register's  entry  is  lost.^ 

As  between  two  mortgagees,  whose  mortgages  are  executed  and 
recorded  on  the  same  day,  parol  evidence  is  admissible  to  show 
which  was  first  deposited  for  record.^  To  ascertain  which  is 
prior  the  fractional  parts  of  a  day  are  considered.*  In  case  no 
entry  is  made  upon  the  record  of  the  time  of  the  recording  of  the 
mortgage,  when  the  law  of  a  state  required  no  such  entry,  and  it 
appears  from  the  record  to  have  been  recorded  at  an  early  day,  it 
will  be  presumed  that  the  record  was  made  within  the  time  re- 
quired by  law  after  the  execution  of  it.^ 

544.  Effect  of  requirement  that  registry  shall  be  made 
within  a  specified  time.  —  It  will  be  observed  that  the  recording 
acts  of  some  states,  as  for  instance  of  Geoi'gia,  Indiana,  Maryland, 
Pennsylvania,  and  Wyoming  Territory,  provide  that  a  mortgage 
shall  be  recorded  within  a  specified  time  after  the  execution  of  it. 
The  effect  of  this  provision  is  not  to  invalidate  the  mortgage  as 
between  the  parties  if  not  recorded  within  the  time  specified.  It 
is  admissible  in  evidence,  and  is  an  equitable  lien,  although  not  so 
recorded.^  The  failure  to  comply  with  this  requirement  only  goes 
to  the  effect  of  the  mortgage  as  to  subsequent  purchasers.  As  to 
those  whose  conveyances  are  registered  before  it  the  mortgage  is 
inetfectual.'  Of  two  mortgages  of  equal  equity,  recorded  within 
the  time  limited  after  execution,  that  which  is  first  recorded  has 
priority.^ 

1  N.  Y.  Life  Ins.  Co.  i;.  White,  17  2  Bay  (S.  C),  80;  Penman  v.  Hart,  lb. 
N.  Y.  469 ;  Thorp  y.  Merrill,  21  Minn.  336.  251;  Ash  v.  Ash,    1    lb.   304;  Rootes  v. 

2  Hay  V.  Hill,  24  Wis.  235,  Holliday,  6  Munf.   (Va.)  '251 ;  Plume  v. 

3  Si.aulding  v.  Scanland,  6  B.  Mon.  Bone,  13  N.J.  L.  (1  Green),  63;  Charter 
(Ky.)  353.  V.  Graham,  56  111.  19. 

*  Lemon   v.    Staats,    1    Cow.    (N.    Y.)  ^  Cowan  i-.  Green,  2   Hawks  (N.  C), 

592.  384. 

5  Hall  V.  Tunnell,  1  Houst.  (Del.)  320.  «  Dungan  v.  Am.  &c.  Ins.  Co.  52  Pa. 

6  Sixth  Ward  Building  Ass'n  v.  Will-  St.  253;  Den  v.  Roberts,  4  N.  J.  L.  (1 
son,  41    Md.  506  ;  Den  v.  Watkins,  6  N.  South.)  315. 

J.  L.  (1  Halst.)  445  ;  Ashe  v.  Livingston, 

411 


§§  545,  546.]      REGISTRATION  AS   AFFECTING   PRIORITY. 

545.  A  mortgage  may  be  recorded  after  the  death  of  the 
m.ortgagor,  if  he  has  in  his  lifetime  made  delivery  of  it.  His 
general  creditors  cannot  for  that  reason  claim  that  the  mortgage 
was  inoperative  as  against  them.^  The  recording  of  a  deed  is 
no  part  of  its  execution.  Neither  does  a  lien  attach  to  the  real 
estate  of  a  debtor  in  favor  of  his  general  creditors  immediately 
upon  his  death,  as  against  the  specific  lien  of  the  mortgage  which 
was  good  against  the  mortgagor.  His  heirs  take  the  estate  upon 
his  decease  subject  to  the  incumbrance ;  and  the  lien  of  the  gen- 
eral creditors,  which  is  merely  a  right  to  have  the  real  estate  in 
the  hands  of  the  heirs  applied  for  their  benefit  upon  a  defi- 
ciency of  the  personal  assets,  attaches  to  it  in  the  same  condi- 
tion.2  In  like  manner  a  mortgage  executed  and  delivered  before 
a  general  assignment  of  the  mortgagor,  for  the  benefit  of  his  cred- 
itors or  before  his  bankruptcy,  if  valid  in  other  respects  is  valid 
against  the  assignment  or  the  bankruptcy,  though  not  recorded 
until  afterwards.^ 

546.  When  it  is  provided  that  mortgages  shall  be  recorded 
in  books  kept  for  that  purpose  separate  from  other  instruments, 
a  mortgage  recorded  as  a  deed  is  not  effectual  as  against  subse- 
quent honci  fide  purchasers  or  mortgagees  ;  even  if  the  mortgage 
be  in  form  an  absolute  deed,  but  intended  as  security  for  a  loan 
of  money  .^ 

If  a  mortgage  is  not  recorded  in  the  mortgage  books,  it  cannot 
be  found  by  means  of  the  index  to  those  books,  and  therefore  is 
not  regarded  as  properly  recorded.^  Such  a  deed  is  of  course 
valid  as  between  the  parties,^  and  though  the  record  is  a  nullity, 
it  becomes  operative  in  case  the  mortgagee  afterwards  acquires 
the  equity  of  redemption.'^  A  subsequent  purchaser  or  mort- 
gagee, who  has  actual  notice  of  a  mortgage  which  is   improperly 

1  Gill  u.  Pinney,  12  Ohio  St.  38;  Has-  C.  6  Johns.  (N.  Y.)  Ch.  417;  Clute  v. 
kelly.  Bissell,  11  Conn.  174.  Kobison,  2  Johns.  (N.  Y.)   595;  Dey  v. 

2  Gill  r.  Pinney,  12  Ohio  St.  38.  Dunham,   2   Johns.    (N.    Y.)    Ch.    182; 

3  Mellon's  Appeal,  32  Pa.  St.  121;  Cordeviolle  t;.  Dawson,  26  La.  Ann.  534  ; 
Wyckoff  y.  Remsen,  11  Paige  (N.  Y.),  Calder  v.  Chapman,  52  Pa.  St.  359,362, 
564.  and  cases  cited. 

*  Warner  v.  Winslow,  1  Sandf.  (N.  Y.)  ^  Luch's  Appeal,  44  Pa.  St.  519. 

Ch.  430;  Brown  u.  Dean,  3  Wend.  (N.  Y.)  6  James   v.   Morey,   6   Johns.   (N.   Y.) 

208;  White   r.  Moore,  1    Paige    (N.    Y.),  Ch.  417. 

551  ;    Grimstone    v.   Carter,    3   lb.    421  ;  '  Warner  v.  Winslow,  1  Sandf.  (N.  Y.) 

James  v.  Morey,  2  Cow.  (N.   Y.)  246  ;  S.  Ch.  430  ;  Grellet  v.  Heilshorn,  4  Nev.  526. 

412 


REQUISITES   AS   TO   TIME   AND   MANNER   OF   RECORDING.      [§§  547,  548. 

recorded  as  an  absolute  conveyance,  of  course  takes  a  title  sub- 
ject to  such  mortgage  just  as  he  would  if  the  mortgage  were  not 
recorded  at  all.  A  statute  which  is  merely  directory  to  the 
recorder  in  this  respect  would  not  invalidate  a  record  of  the 
mortgage  not  made  in  the  record  books  specially  used  for  mort- 
gages.^ 

Of  course  the  mortgage,  whether  in  regular  form  or  by  way  of 
an  absolute  deed,  is  valid  between  the  parties,  although  the  stat- 
ute requirement  that  it  be  recorded  as  a  mortgage  be  not  com- 
plied with.2 

547.  The  effect  of  a  requirement  that  a  power  of  attorney 
under  which  a  mortgage  is  executed  shall  be  recorded  with 
it.  —  It  is  sometimes  provided  by  statute  that  a  power  of  attor- 
ney, under  which  a  mortgage  or  other  conveyance  is  executed, 
shall  be  recorded  with  the  deed,  which  owes  its  existence  to  the 
power,  and  when  this  is  the  case  the  record  of  the  deed  without 
the  power  has  no  legal  effect.^ 

But,  aside  from  this  requirement,  it  is  not  necessary  that  a 
power  should  be  recorded  with  the  mortgage,  or  that  it  should 
be  recorded  at  all,  in  order  that  the  mortgage  deed  when  re- 
corded should  be  notice  to  all  the  world.* 

The  record  of  a  power  of  attorney,  when  the  law  does  not  re- 
quire it  to  be  recorded,  does  not  amount  to  constructive  notice.^ 
The  law  does  not  intend  that  to  be  known,  for  the  existence 
of  which  there  is  no  legal  necessity.*^ 

548.  Record  of  separate  defeasance.  —  When  an  absolute 
deed  is  given  in  the  way  of  security,  with  written  defeasance 
back,  the  rights  of  the  mortgagee  are  in  general  fully  protected 
without  any  record  of  the  defeasance.  The  deed  is  sufficient  no- 
tice of  his  interest.'  In  fact,  it  is  notice  of  a  greater  interest 
than  he  actually  has.  But  this  does  not  matter  except  in  those 
states  in  which   the   recording  of  the  defeasance  is  expressly  re- 

1  Smith  V.  Smith,  13  Ohio  St.  532.  «  James  v.  Morey,  2  Cow.  (N.  Y.)   296. 

2  James  v.  Morey,  2  Cow.  (N.  Y.)  246 ;  "  Clemens  v.  Elder,  9  Iowa,  272  ;  Young 
6  Johns.  Ch.  417.  v.  Thompson,   2  Kas.    83;   Newberry   v. 

3  Caruall  u.  Duval,  22  Ark.  136.  Bulklcy,  5  Day  (Conn.),  384;  but  see 
*  Wilson  V.  Troup,  2  Cow.  (N.  Y.)  195.  Friedley  v.  Hamilton,  17  S.  &  R.  (Pa.) 
5  "Williams  v.  Birbeck,  Hoff.   Ch.    (N.     70;    Jaqucs   v.   Weeks,   7   Watts   (Pa.), 

Y.)  359.  287. 

413 


§  548.]  REGISTRATION   AS   AFFECTING   PRIORITY. 

quired  as  a  condition  upon  which  the  mortgagee  shall  derive  any 
benefit  from  the  record  of  the  deed,  as  in  California,  Dakota  Ter- 
ritory, Delaware,  Maryland,  Nebraska,  New  Jersey,  and  New 
York.i  When  the  defeasance  is  not  recorded,  the  obvious  effect 
of  the  record  of  the  deed  alone  is  to  make  the  grantee  the  appar- 
ent absolute  owner  of  the  estate,  and  the  person  who  holds  the 
defeasance  may  be  barred  of  all  right  of  redemption  by  a  sale  by 
the  mortgagee  to  one  who  buys  in  good  faith  and  without  notice 
of  such  defeasance.  As  to  third  persons,  the  absolute  convey- 
ance is  not  defeated  or  affected  unless  the  defeasance  is  also  re- 
corded ;  and  an  express  declaration  to  this  effect  has  been  made 
by  statute  in  several  states,  as  in  Delaware,  Indiana,  Kansas, 
Maine,  Massachusetts,  Michigan,  Minnesota,  Oregon,  Rhode  Isl- 
and, Wisconsin,  and  Wyoming  Territory ;  and  in  New  Hamp- 
shire it  is  provided  that  the  conveyance  shall  not  be  defeated  or 
the  estate  incumbered,  unless  the  defeasance  is  contained  in  the 
condition  of  the  mortgage.  The  object  of  the  latter  statutes  is 
to  protect  innocent  purchasers  from  the  mortgagee  who  has  ap- 
parently an  indefeasible  title  ;  while  the  provision  whereby  the 
record  of  the  defeasance  is  enforced,  in  the  states  before  named, 
is  made  for  the  protection  of  the  mortgagor. 

These  requirements  of  statute  have  no  application  when  the 
conveyance  to  which  the  defeasance  relates  does  not  purport  upon 
its  face  to  be  absolute  and  unconditional.^  While  a  purchaser  in 
good  faith  and  without  notice,  from  a  mortgagee,  by  an  absolute 
conveyance  obtains  a  title  not  subject  to  redemption,  j^et  if  the 
purchaser  has  notice  of  the  original  transaction,  he  takes  only  the 
mortgagee's  title ;  and  if  there  are  successive  mutations,  but  al- 
ways coupled  with  such  notice,  the  original  conveyance  continues 
as  a  mortgage.^  The  fact  that  the  grantor  remains  in  possession 
of  the  property  has  been  held  sufficient  to  charge  the  purchaser 
with  such  notice.* 

1  See  statutes,  ante.     The  same  rule  is  equally  worthless  as  a  mortgage,  because 

judicially  established  in  Pennsylvania,  it  does  not  appear  by  the  record  to  be   a 

"  A  mortgage,"  says  Mr.  Justice  Black,  in  mortgage." 

Hendrickson's  Appeal,"  when  in  the  shape  ^  Russell  v.  Waite,  Walk.  (Mich.)  31  ; 

of  an  absolute  conveyance,  with  a  sepa-  Noyes  v.  Sturdivant,  18  Me.  104. 

rate  defeasance,  the  former  being  recorded  ^  Brown  v.  Gaffney,  28  111.  149  ;  Shaver 

the  latter  not,  gives  the  holder  no  rights  v.  Woodward,  lb.  277 ;  Hall  v.  Savill,  3 

against  a  subsequent  incumbrancer.     It  is  Greene  (Iowa),  37  ;  Williams  v.  Thorn,  11 

good  for  nothing  as  a  conveyance,  because  Paige  (N.  Y.),  459. 

it  is,  in  fact,  not  a  conveyance;  and  it  is  *  Mann  v.  Falcon,  25  Tex.  274. 

414 


REQUISITES    AS   TO   TIME   AND    MANNER    OF   RECORDING.       [§  549. 

549.  A  purchaser  may  rely  upon  the  legal  title  as  it  appears 
of  record. — These  pi*o visions  of  statute  are,  liowever,  only  the 
enactment  of  a  principle  that  is  necessarily  deduced  from  the 
general  provisions  of  the  registry  system,  and  which  had  already 
been  established  by  judicial  construction.^  "  It  is  regarded,"  says 
Chief  Justice  Redfield,  "  as  more  in  conformity  to  just  principles 
of  equity  and  fair  dealing,  that  the  estate  of  the  cestui  que  trust 
should  be  extinguished  by  the  deed  of  the  trustee,  than  that  the 
equal  equity  of  the  purchaser  should  be  defeated,  and  thus  the 
free  and  fair  transmission  of  estates  be  embarrassed  and  placed 
under  a  cloud  of  suspicion  and  doubt.  The  equities  of  the  parties 
being  equal,  the  legal  estate  is  allowed  to  prevail,  and  a  rule  of 
policy  is  at  the  same  time  subserved,  by  leaving  the  transmission 
of  titles  unembarrassed  as  far  as  practicable,  thus  inspiring  con- 
fidence, rather  than  distrust,  in  the  transmission  of  titles  to  real 
estate."  ^ 

*  When  the  mortgage  is  by  a  deed  absolute  in  form,  and  the  de- 
feasance is  not  recorded,  the  grantee  can  of  course  convey  a  good 
title  to  a  bond  fide  purchaser.^'  The  position  of  the  parties  is 
quite  the  same,  when  the  holder  of  a  mortgage  duly  recorded  has 
taken  a  conveyance  of  the  equity  of  redemption,  and  has  then 
assigned  the  mortgage  to  one  who  does  not  record  the  assignment, 
and  has  then  conveyed  the  fee  to  another.  Apparently  the  mort- 
gagee, at  the  time  of  his  conveyance  in  fe^  had  the  complete  title 
by  merger  of  the  mortgage  in  the  fee,  just  as  the  mortgagee  by  an 
absolute  deed  has  it ;  and  the  prior  assignment  of  the  mortgage 
by  an  assignment  not  recorded  amounts  to  the  defeasance  not 
being  recorded.* 

As  elsewhere  noticed,  neither  an  attaching  creditor  nor  a  judg- 
ment creditor  is  regarded  as  a  purchaser,  and  therefore  he  acquires 
by  his  attachment  or  judgment  no  lien  upon  the  land  in  the  hands 
of  the  mortgagee  holding  the  title  absolutely,  as  against  the  equi- 

1  See  §  339  ;    Newhall  v.  Burt,  7  Pick.  -  Hart  v.  Farmers'  &  Mechanics'  Bank, 

(Mass.)    157  ;    Newhall   v.   Pierce,   5   lb.  33  Vt.  252. 

450;  Harrison   v.  Phillips   Academy,   12  »  Bailey  r.  Myrick,  50  Me.  171. 

Mass.  456  ;  Mills  v.  Comstock,  5  Johns.  *  Mills  v.  Comstock,  5  Johns.  Ch.  214. 

(N.  Y.)  Ch.  214;    Whittick   r.  Kane,  1  See  Purdy  r.  Huntington,  42  N.  Y.  334; 

Paige  (N.  Y.),  202;  Stoddard  v.  Rotton,  S.  C.  46  Barb.  389,  reversed. 
5  Bosw.  (N.  Y.)  378;  Columbia  Bank  v. 
Jacobs,  10  Mich.  349. 

415 


§§  550,  551.]      REGISTRATION   AS   AFFECTING   PRIORITY. 

table  cestui  que  trust,  or  grantor  equitably  entitled  to  the  equity 
of  redemption. 1 

5.  Errors  in  the  Record. 

550.  If  the  record  of  a  mortgage  be  defective  for  any  cause 
it  does  not  amount  to  constructive  notice.^  Every  requirement  of 
statute  in  relation  to  the  execution  and  acknowledgment  or  proof 
of  the  mortgage  must  be  complied  with  in  order  to  gain  priority 
by  the  record  of  it.^  Moreover,  the  deed  as  it  stands  must  be 
spread  upon  the  record  correctly.  Persons  interested  in  a  title 
have  a  right  to  resort  to  the  records  to  find  out  the  contents  of  a 
deed,  and  can  be  considered  as  having  notice  of  it  only  as  it  ap- 
pears of  record.  The  rule  that  the  deed  is  notice  from  the  time 
it  is  left  for  record  is  subject  to  the  qualification  that  it  is  cor- 
rectly transcribed.  When  the  record  itself  is  defective,  it  is  notice 
of  only  what  appears  upon  it.  If,  for  instance,  a  mortgage  for 
three  thousand  dollars  be,  by  mistake  of  the  recorder,  registered 
as  for  three  hundred  dollars,  or  a  mortgage  for  four  hundred  dol- 
lars be  registered  as  two  hundred- dollars,  it  is  notice  to  subsequent 
bond  fide  purchasers  of  a  lien  of  only  that  amount.^  It  is  no  part 
of  the  purchaser's  duty  to  search  the  original  papers  to  find  out 
whether  the  recorder  has  correctly  spread  their  contents  upon  the 
record.  The  obligation  of  giving  notice  rests  upon  the  party  hold- 
ing the  title.  If  the  recorder  occasions  a  loss  on  his  part  by  in- 
correctly transcribing  the  deed,  he  may  recover  damages  of  the 
recorder  for  such  loss.^ 

551.  Third  persons  are  not  prejudiced  by  errors  in  record- 
ing. —  Third  persons  are  not  required  to  go  beyond  the  registry 
to  ascertain  whether  the  title  is  good.  If  there  is  any  error  or 
omission  in  the  registry  of  a  mortgage,  the  mortgagee  must  suffer 
for  it  rather  than  others,  who  afterwards  consult  the  recox-ds  and 

1  Hart  V.  Farmers'  &  Mechanics'  Bank,  *  "Frost  v.  Beekman,  18  Johns.  (N.  Y.) 
33  Vt.  252.  544;  Peck   v.   Mallaras,    10   N.    Y.   509; 

2  N.  Y.  Life  Ins.  Co.  v.  White,  17  N.  Terrell  v.  Andrew  County,  44  Mo.  309. 
Y.  469 ;  Frost  v.  Beekman,  1  Johns.  (N.  See  Jennings  v.  Wood,  20  Ohio,  261, 
Y.)  Ch.  288;  18  Johns.  544;  Johns  v.  where  a  mistake  was  made  in  the  grantor's 
Scott,   5  Md.  81  ;  Heister  v.  Fortner,   2  name. 

Binn.  (Pa.)  40.  5  Terrell  v.  Andrew  County,  supra. 

3  Thompson    v.   Mack,    Harr.   (Mich.) 
150  ;  Weed  v.  Lyon,  lb.  363. 

416 


ERRORS   IN   THE   RECORD.  [§§  552,  553. 

find  no  incumbrance  by  mortgage  upon  the  estate.  He  may  in 
some  cases  have  recourse  against  the  recorder  for  damages  occa- 
sioned by  his  errors  or  omissions  in  recording  ;  but  otherwise  the 
loss  so  occasioned  must  fall  upon  him.^ 

552.  Exception  ■when  by  statute  the  deed  is  made  opera- 
tive as  a  record  from  the  time  it  is  filed  for  record.  —  Where 
the  law  makes  the  record  complete  as  constructive  notice  from  the 
time  of  the  delivery  of  the  mortgage  to  the  recording  officer  to  be 
recorded,  it  follows  that  any  error  in  transcribing  the  deed,  as  for 
instance  in  the  date  of  the  deed  or  of  the  acknowledgment,^  or  in 
the  sum  secured  by  it,  does  not  prejudice  the  mortgagee.^  The 
mortgagee  is  then  regarded  as  having  discharged  his  entire  duty 
when  he  has  delivered  his  mortgage,  properly  executed  and  ac- 
knowledged, to  the  recording  officer,  and  as  being  in  the  same  atti- 
tude as  if  the  deed  were  at  that  moment  correctly  spread  upon  the 
record  book.  No  subsequent  mistake  can  deprive  the  deed  of  its 
operation  as  a  recorded  instrument.  A  mistake  of  the  officer  in 
transcribing  the  mortgage,  by  which  it  is  made  to  appear  to  be  a 
security  for  a  smaller  amount  than  is  actually  provided  for  by 
it,  does  not  impair  the  mortgage  as  a  security  for  the  amount  for 
which  it  was  actually  given,  although  subsequent  purchasers  and 
creditors  relying  upon  the  record  have  taken  the  incumbrance  to 
be  only  the  amount  there  disclosed. 

The  lien  of  the  mortgage  begins  when  it  is  left  for  record  and 
entered  in  a  proper  entry  book,  required  to  be  kept  for  the  pur- 
pose of  showing  what  deeds  or  mortgages  are  left  for  record.  The 
mortgagee  is  under  no  obligation  to  supervise  the  work  of  the 
recorder,  and  see  that  he  spreads  the  deed  upon  record,  or  that  he 
puts  it  upon  the  index.* 

553.  The  index  is  no  part  of  the  record,  and  a  mistake  in  it 

1  Taylor  v.  Hotchkiss,  2  La.  Ann.  917.  "  shall  take  effect  and  be  in  force  from  and 

2  Wood's  Appeal,  82  Pa.  St.  116;  S.  C.  after  the  time  of  tiling  the  same  for  record." 
16  Am.  Law  Reg.  255  ;  Brooke's  Appeal,  Merrick  i;.  Wallace,  19  111.  486,  497.  Sa 
64  Pa.  St.  127 ;  Musser  v.  Hyde,  2  W.  also  in  Ohio,  where  the  statute  providea 
&  S.  (Pa.)  314.  that   a  deed   "shall  take  effect  and  have 

^  Mims  V.  Mims,  35  Ala.  23.    See  Code  preference    from   the   time    the   same   is 

of  Ala.  1539.     "  The  conveyance  is  opera-  delivered   to   the   recorder."     Touslej   v. 

tive  as  a  record  from  the  day  of  the  de-  Tousley,  5  Ohio  St.  78. 

liverj."    A  similar  view  was  taken  under  *  Wood's  Appeal,  82  Pa.  St.  116.. 
a  statute  of  Illinois,  providing  that  deeds 

VOL.  I.                                 27  417 


553.] 


EEGISTRATION   AS   AFFECTING   PRIORITY. 


does  not  invalidate  the  notice  afforded  by  a  record  otherwise 
properly  made.^  Although  the  mortgage  be  omitted  from  the 
index,  it  is  just  as  much  an  incumbrance  upon  the  land,  and 
notice  of  it,  from  the  time  it  was  left  for  record  or  transcribed, 
affects  all  subsequent  purchasers.^  The  general  policy  of  the  re- 
cording acts  is  to  make  the  filing  of  a  deed,  duly  executed  and 
acknowledged  with  the  proper  recording  officer,  constructive  no- 
tice from  that  time  ;  and  although  it  be  provided  that  the  reg- 
ister shall  make  an  index  for  the  purpose  of  affording  a  correct 
and  easy  reference  to  the  books  of  record  in  his  office,  the  index 
is  designed,  not  for  the  protection  of  the  party  recording  his  con- 
veyance, but  for  the  convenience  of  those  searching  the  records  ; 
and  instead  of  being  a  part  of  the  record,  it  only  shows  the  way  to 
the  record.  It  is  in  no  way  necessary  that  a  conveyance  shall  be 
indexed,  as  well  as  recorded,  in  order  to  make  it  a  valid  notice.^ 


1  Green  v.  Garrington,  16  Ohio  St.  548. 

2  Curtis  I'.  Lyman,  24  Vt.  338  ;  Board 
of  Commissioners  v.  Babcock,  5  Oregon, 
472;  Tlirochmorton  v.  Price,  28  Tex.  605. 

8  Mutual  Life  Ins.  Co.  v.  Dake,  1  Abb. 
(N.  Y.)  N.  C.  381. 

Mr.  Justice  Smith,  delivering  the  opin 
ion  of  the  court,  said  :  "  It  is  not  a  little 
surprising  to  find  that  a  question  so  likely 
to  come  up  frequently  has  not  arisen  in 
any  reported  case  in  this  state.  I  suppose 
the  usual  practice  in  searching  the  records 
in  the  clerk's  office  is  to  consult  the  index, 
and  to  rely  upon  it.  That  is  obviously  the 
most  convenient  way  ;  and  if  the  index  is 
full  and  accurate,  it  saves  the  necessity 
of  going  through  the  records  themselves. 
But  if  the  index  is  imperfect  and  misleads 
the  searcher,  as  appears  to  have  been  the 
case  here,  who  is  to  suffer  —  the  party  who 
duly  transcribed  his  mortgage  in  the  rec- 
ord book,  or  the  party  who,  relying  on  the 
index,  omitted  to  look  at  the  record?  The 
question  is  to  be  answered  by  determining 
whether  the  index  is  an  essential  part  of 
the  record,  —  that  is  to  say,  whether  it  is 
necessary  to  the  completeness  and  effi- 
ciency of  the  record  as  a  notice  to  after 
purchasers."  After  examining  the  statutes 
and  reaching  the  conclusion  that  the  index 
is  no  part  of  the  record,  he  continues  :  "  In 

418 


reaching  this  conclusion,  I  have  not  over- 
looked the  practical  inconveniences  that 
may  result  from  it  in  searching  records. 
But  the  duty  of  the  court  is  only  to  declare 
the  laws  as  the  legislature  has  laid  it  down. 
Arguments  ad  inconvenienti  may  some- 
times throw  light  upon  the  construction  of 
ambiguous  or  doubtful  words ;  but  where, 
as  here,  the  language  of  the  law  makes  it 
plain,  they  are  out  of  place.  Inconven- 
iences in  practice  will  result  whichever  way 
the  question  shall  be  decided.  The  power 
to  remedy  them  is  in  the  legislature,  and 
not  in  the  courts.  Even  as  the  law  now 
stands,  the  party  injured  by  the  omission 
of  the  clerk  is  not  without  remedy,  for  he 
has  his  action  against  the  clerk." 

The  same  rule  was  applied  under  anal- 
ogous statutes  in  New  York  relating  to  the 
filing  of  chattel  mortgages.  Dodge  v.  Pot- 
ter, 18  Barb.  (N.  Y.)  193;  Dikeraan  v. 
Puckhafer,  1  Abb.  (N.  Y.)  Pr.  N.  S.  32. 
These  cases  hold  that  the  mortgagee,  by- 
filing  and  depositing  his  mortgage  with 
the  clerk,  did  all  that  he  could  do,  and  all 
that  he  was  required  to  do,  in  order  to 
perfect  his  claim,  and  that  the  omission  of 
the  mortgage  from  the  index,  being  with- 
out his  fault  or  knowledge,  did  not  preju- 
dice him. 


ERRORS  IN    THE   RECORD.  [§§  554,  555. 

When  a  grantee  has  delivered  his  deed  to  the  recorder,  notice 
of  its  contents  is  imparted  from  that  time,  if  it  is  correctly  spread 
upon  the  record.  He  has  done  all  the  law  requires  of  him  for  his 
protection.  The  purpose  of  the  index  is  only  to  point  to  the 
record,  but  constitutes  no  part  of  it.^ 

In  Pennsylvania,  however,  under  statutes  not  materially  dif- 
ferent from  those  of  New  York,  the  reasoning  of  Mr.  Chief  Justice 
Woodward  in  a  late  case  was,  that  the  mortgage  not  duly  in- 
dexed was  not  constructive  notice  to  third  persons ;  that  as  a 
guide  to  inquirers,  the  index  is  an  indispensable  part  of  the  record- 
ing ;  and  that,  without  it,  the  record  affects  no  party  with  notice.^ 
In  this  case  the  purchaser  had  actual  notice  of  the  existence  of 
the  mortgage,  and  therefore  could  not  complain  of  the  want  of 
record  ;  and  in  that  view  what  was  said  by  the  court  as  to  the  suf- 
ficiency of  the  record  was  not  material  to  the  result. 

554.  Remedy  for  damages  occasioned  by  errors  in  the  in- 
dex. —  Under  this  rule  one  who  in  good  faith  has  taken  a  subse- 
quent deed  or  mortgage  of  the  property,  on  the  faith  of  finding  no 
incumbrance  upon  the  index,  might  probably  have  a  remedy  for 
damages  against  the  register,  whose  duty  it  was  under  the  law  to 
make  the  index.^  In  Missouri  a  statute  provides  that  a  recorder 
who  neglects  or  refuses  to  keep  an  index  to  tlie  books  of  record 
shall  pay  to  the  party  aggrieved  double  the  damages  which  may 
be  occasioned  thereby  ;  but  the  court  has  suggested  that  before  a 
purchaser  can  recover  for  the  failure  of  the  recorder  to  index  a 
prior  mortgage  upon  the  property,  he  must  show  that  the  damage 
arose  from  the  recorder's  neglect,  and  not  from  other  causes  ;  as 
for  instance  his  osvn  reliance  upon  false  outside  representations  as 
to  the  title  without  an  examination  of  the  index,  or  from  his  mis- 
taken reliance  upon  the  covenants  of  the  grantor."* 

555.  Error  in  descriptive  index.  —  A  recital  in  a  mortgage 
for  purchase  money,  that  the  premises  are  the  same  conveyed  to 
the  mortgagor  by  the  mortgagee  by  deed  of  even  date  is  generally 
suthcient  notice  of  the  mortgage  when  recorded,  although  by  mis- 
take the  lot  described  is  an  entirely  different  lot.     Yet  in  Iowa, 

1  Bishop  V.  Schneider,  46  Mo.  472.  »  Mut.  Life  Ins.  Co.  v.  Dake,  1  Abb. 

2  Speer  i-.  Evans,  47  Ta.  St.  141.  (N.  Y.)  N.  C.  381,  per  Smith,  .J. 

*  Bishop  V.  Schneider,  46  Mo.  472. 

419 


§  556.]  REGISTRATION   AS   AFFECTING   PRIORITY. 

where  the  laws  require  a  descriptive  index  to  be  kept,  this  recital 
is  held  to  be  an  insufficient  notice  of  the  conveyance  of  the  lot 
referred  to  in  the  recital,  inasmuch  as  the  lot  described  would  ap- 
pear in  the  index,  and  not  the  lot  referred  to  in  the  recital.^  In 
that  state  the  descriptive  index  is  an  important  part  of  the  notice 
afforded  by  the  record,  though  it  is  not  necessary  that  the  descrip- 
tive part  of  the  index  should  contain  more  than  a  reference  to  the 
record  ;  and  where  a  description  by  plan  or  survey  is  impracti- 
cable, a  reference  "  to  certain  lots  of  land,"  ^  or  "  see  record,"  ^ 
has  been  held  sufficient.  But  where  the  mortgage  covered  two 
lots  of  land,  but  the  description  of  one  of  them  only  was  entered 
in  the  descriptive  column  of  the  index,  it  was  held  that  the  record 
did  not  impart  constructive  notice  of  the  lot  not  described,  and 
that  the  consequences  of  the  recorder's  error  should  fall  upon  the 
mortgagee  rather  than  upon  subsequent  purchasers.^  The  record, 
though  complete  in  every  other  respect,  except  that  it  is  not  prop- 
erly indexed,  does  not  operate  as  constructive  notice.^ 

Yet,  while  an  index  is  insufficient,  if  it  would  mislead  an  in- 
quirer by  giving  a  totally  wrong  description,  a  mistake  in  the  in- 
dex reference  to  the  page  of  the  book  where  the  instrument  is  re- 
corded, the  names  of  the  grantor  and  the  grantee  being  correctly 
given,  does  not  prevent  its  operating  as  constructive  notice  of  the 
acts  which  would  be  disclosed  by  an  examination  of  the  record. 
The  record  book  and  the  index  book  are  not  considered  detached 
and  independent  books,  but  are  related  and  connected,  and  a  party 
is  affected  with  notice  of  the  contents  of  the  record,  when  an 
ordinarily  diligent  search  will  bring  him  to  a  knowledge  of  such 
contents.  To  a  competent  examiner  of  the  records,  finding  the 
name  of  one  entered  upon  the  index  as  having  made  a  mortgage, 
it  would  occur  that  it  was  much  more  likely  that  the  recorder 
should  make  an  error  in  entering  the  page  of  the  record,  than 
that  he  should  mistake  the  name  of  the  mortgagor,  or  should 
enter  his  name  at  all  if  he  had  not  recorded  the  deed.^ 

556.  A  mortgage  defectively  recorded  is  an  equitable  lien. 
But    although    a    mortgage   be  defectively  recorded,  or  not  re- 

1  Scoles  V.  Wilsey,  11  Iowa,  261 ;  Whal-  »  White  v.  Hampton,  13  Iowa,  259. 

ley  V.    Small,   25   Iowa,   184;   Calvin   v.  *  Noyes  r.  Horr,  13  Iowa,  570, 

Bowman,  10  Iowa,  529.  ^  Gwynn  v.  Turner,  18  Iowa,  1. 

"  Bostwick  V.  Powers,  12  Iowa,  456.  ^  Barney  v.  Little,  15  Iowa,  527. 

420 


EFFECT    OF   A   RECORD   DULY   MADE.  [§  557. 

corded  at  all,  so  that  it  has  no  effect  as  against  subsequent  pur- 
chasers in  good  faith,  yet  it  is  a  good  equitable  lien,  and  is  supe- 
rior to  the  claims  of  creditors  under  subsequent  judgments ;  and 
is  superior  to  the  claims  of  general  creditors  who  were  such  at  the 
date  of  the  mortgage ;  ^  and  is  superior  to  a  subsequent  voluntary 
assignment  by  the  mortgagor  for  the  benefit  of  creditors.^  In 
like  manner  a  mortgage  defectively  executed,  as  for  instance  at- 
tested by  only  one  witness  when  two  are  required,  is  a  good  equi- 
table mortgage.^  According  to  the  authorities  in  some  states, 
however,  a  mortgage  defectively  recorded,  or  not  recorded  at  all, 
gives  no  priority  to  the  mortgagee  over  any  other  creditor.'*  As 
against  third  parties  having  notice  of  such  mortgage,  it  is  also  a 
good  specific  lien  which  will  be  enforced  against  them  in  equity.^ 

Such  equitable  mortgages  have  been  held  to  be  superior  to  the 
claims  of  the  mortgagor's  general  creditors.  This  was  the  rule  in 
South  Carolina  before  the  Act  of  1843,  now  embodied  in  the  Re- 
vised Statutes  of  that  state.  A  legal  mortgage  not  recorded,  or  an 
equitable  mortgage  incapable  of  record,  was  preferred  to  a  sub- 
sequent creditor  without  notice.  The  consequence  of  imparting 
validity  to  unrecorded  mortgages  is  said  to  have  wrought  much 
injury  by  impairing  confidence  in  titles,  and  thereby  depreciating 
the  value  of  real  estate.  The  act  above  referred  to  placed  subse- 
quent creditors  and  purchasers  upon  the  same  footing.^ 

6.    The  Effect  of  a  Record  duly  made. 
557.  The  record  of   a  mortgage   is   constructive  notice  of 
its  contents  to  all  subsequent  purchasers  and  mortgagees."     As  to 

1  Lake  v.  Doud,  10  Ohio,  415;  Bank  ion  carries  weight,  who  does  not  regret 
of  Muskingum  v.  Carpenter,  7  Ohio,  21;  that  the  courts  ever  favored  the  introduc- 
otherwise,  however,  under  later  cases   in     tion  of  secret  liens." 

Ohio:  White  v.  Denmau,  1  Ohio  St.  110;  '  Humphreys  v.  Newman,  51  Me.  40; 

Bloom  I'.  Noggle,  4  Ohio   St.  45;    Sixth  Hall  v.   M'Duff,   24  Me.  311;    Bolles   v. 

Ward   Build.  Ass'n.  v.  Willson,  41   Md.  Chauncey,  8  Conn.  389 ;  Peters  v.  Good- 

506;  and  see  Price  v.  McDonald,  1   Md.  rich,   3    Conn.    146;   Dennis   v.   Burritt, 

403;    Phillips  v.   Pearson,  27   Md.   242;  6  Cal.  670 ;  McCabe  r.  Grey,  20  Cal.  509 ; 

Bibb  v.  Baker,  17  B.  Mon.  (Ky.)292.  Clabaugh  v.  Byerly,  7  Gill   (Md.),  354; 

2  Nice's  Appeal,  54  Pa.  St.  200.  Souder  r.  Morrow,  33  Pa.  St.  83  ;  Johnson 
8  Abbott  V.  Godfrey,  1  Mich.  178.  r.  Stagg,  2  Johns.  (N.  Y.)  510;  Parkist 
*Hendersonr.  McGhee,  6Heisk.  (Tenn.)  v.  Alexander,  1  Johns.  (N.  Y.)Ch.  394; 

55.  Buchanan  v.  International  Bank,  78  III. 

0  Racouillat  I'.  Sansevain,  32  Cal.  376.  500;   Barbour  v.    Nichols,   3    R.  I.  187; 

6  Boycer.  Shiver,  3  S.  C.  515.    "There  Doyle  v.  Stevens,  4  Mich.  87;  Ogden  w. 

is  not  a  single  modern  writer,  whose  opin-  Walters,  12  Kas.  282. 

421 


§  558.]  REGISTRATION   AS   AFFECTING   PRIORITY. 

them  the  mortgage  takes  effect  not  because  of  its  prior  execution, 
but  by  reason  of  its  prior  record.  The  mortgage  is  in  the  line  of 
their  title,  and  by  the  record  they  become  bound  by  it  as  much  as 
the  mortgagor  himself.^  It  is  notice  only  to  subsequent  purchasers 
and  incumbrancers,  and  not  to  those  who  have  prior  rights,  or  even 
to  those  whose  rights  are  contemporaneous  with  those  of  the  mort- 
gagor, as  for  instance  to  his  co-tenants ;  therefore  a  mortgage  bj'' 
one  tenant  in  common,  though  duly  recorded,  is  no  notice  to  his 
co-tenant  of  its  existence,  or  of  the  claim  of  the  mortgagor  to  the 
exclusive  ownership  of  the  land.^ 

When  a  mortgage  is  recorded  prior  to  another  conveyance  from 
the  mortgagor,  it  does  not  matter  that  this  conveyance  was  made 
in  pursuance  of  a  contract  entered  into  after  the  execution  of  the 
mortgage,  and  before  the  record  of  it,  if  nothing  had  been  done 
towards  carrying  the  contract  into  execution  at  the  time  of  the 
filing  of  the  mortgage  for  record.^  From  that  time  it  is  construc- 
tive notice  to  all  who  may  afterwards  acquire  any  interest  in  the 
same  property. 

A  mortgage  duly  recorded  is  notice  not  only  of  the  existence  of 
the  mortgage,  but  of  all  its  contents.^  It  is  notice  too  of  the  cove- 
nants contained  in  it.^  Although  the  debt  be  not  fully  described 
the  record  is  notice  of  all  that  is  said  about  it,  and  a  purchaser 
is  bound  by  the  statements  made,  and  by  the  information  he  is 
put  upon  the  inquiry  to  find  out.^  It  is  notice  of  the  statements 
in  it  regarding  the  debt,  whether  the  description  be  fully  set  out, 
or  consists  of  references  to  other  instruments.'^  It  is  notice  not 
only  to  purchasers  but  to  subsequent  creditors  as  well.  They  can- 
not complain  that  the  transaction  is  fraudulent,  unless  they  can 
show  that  the  object  of  the  conveyance  was  to  avoid  subsequent 
indebtedness.^ 

558.  Priority  once  gained  cannot  be  lost.  —  The  registry  of 
a  mortgage  is  equivalent  to  a  notice  of  it  to  all  pei'sons  who  may 
subsequently  become  interested  in  the  property,  and  fully  protects 

1  Tripe  v.  Marcy,  39  N.  H.  439  ;  Gran-        ^  Morris  v.  Wads  worth,  17  Wend.   (N. 
din  V.  Anderson,  15  Ohio  St.  286;    and     Y.)  103. 

see  Leiby  v.  Wolf,  10  Ohio,  83.  ^  Youngs  v.  Wilson,  27  N.   Y.  351,  re- 

2  Leach  v.  Beattie,  33  Vt.  195.  versing  24  Barb.  510. 

8  Kyle  V.  Thompson,  11  Ohio  St.  616.  ^  Dimon  v.  Dunn,  15  N.  Y.  498. 

*  Thomson  v.  Wilcox,  7  Lans.  (N.  Y.)  «  Hickman  v.  Perrin,  6  Coldw.  (Tenn.) 

376.  135. 
422 


EFFECT    OF   A  RECORD   DULY   MADE.  [§  558. 

the  mortgagee's  rights.  Once  having  obtained  priority  by  record, 
it  does  not  subsequently  lose  its  place  by  being  held  by  any  one 
under  an  unrecorded  assignment.  And  although  the  mortgagee 
had  notice  of  a  prior  unrecorded  mortgage,  or  there  are  equities 
such  that  his  own  mortgage  is  in  his  hands  subject  to  them,  yet  if 
he  assigns  his  mortgage  for  a  valuable  consideration  to  one  who 
has  no  notice  of  the  earlier  mortgage  or  of  such  equities,  the  as- 
signee is  entitled  to  hold  the  mortgage  as  a  prior  lien  upon  the 
land,  solely  upon  the  ground  that  it  was  first  recorded.^ 

Having  recorded  his  mortgage,  the  mortgagee  is  not  bound  to 
give  personal  notice  of  his  mortgage  to  one  who  purchases  of  the 
mortgagor ;  and  a  delay  for  ten  years,  or  for  any  other  period  less 
than  the  statute  period  of  limitation,  to  make  any  claim  of  the 
purchaser  under  the  mortgage,  does  not  impair  his  rights  under 
the  mortgage  either  at  law  or  in  equity  ;  and  the  fact  that  the 
mortgagor  has  in  the  mean  time  become  insolvent  does  not  preju- 
dice his  claim  upon  the  propert3^^ 

A  mortgage  being  duly  recorded,  the  subsequent  dealings  of 
the  mortgagor  and  others  claiming  under  him  have  no  effect 
whatever  upon  it.  If,  for  instance,  the  mortgagor  subsequently 
sells  the  land  and  reserves  a  right  of  way,  this  right  remains  sub- 
ject to  the  title  of  the  mortgagee,  and  a  sale  under  a  mortgage  de- 
stroys it,  as  well  as  the  title  to  the  remainder  of  the  land.* 

In  accordance  with  these  principles,  it  follows  that  a  junior 
mortgage  duly  recorded,  without  notice  of  a  prior  unrecorded 
mortgage,  has  precedence  of  it ;  ^  in  other  words,  the  mortgages 
take  precedence  in  the  order  of  the  record.  This  precedence  fol- 
lows them  through  any  subsequent  transfers,  or  through  any  pro- 
ceedings to  enforce  the  liens.  When  the  mortgage  first  recorded 
is  foreclosed,  a  purchaser  at  the  foreclosure  sale  obtains  a  com- 
plete and  absolute  title.     But  a  purchaser  at  a  foreclosure  sale, 

1  Brinckerhoff  r.  Lansing,  4  Johns.  (N.  ^  Dick  v.  Balch,  8  Pet.  30;  Rice  v. 
y.)  Ch.   65  ;  Tuthill  v.  Dubois,  4  Johns.     Dewey,  54  Barb.  (N.  Y.)  455. 

(N.   Y.)    216  ;    Parkist   v.   Alexander,    1  *  King  v.  McCully,  38  Pa.  St.  76. 

Johns.    (N.    y.)    Ch.  394 ;    Campbell   v.  ^  Taylor   v.  Thomas,   5   N.   J.    Eq.    (1 

Vedder,  3  Keyes  (N.   Y.),  174  ;  S.  C.   1  Halst.)  331  ;  Grant  v.  Bissett,  1   Caines 

Abb.  Dec.  295;  and  see  Douglass  i;.  Peele,  (N.   Y.)  Cas.   112;  Poraet  v.  Scranton,  1 

1  Clark  (N.  Y.),  563  ;  Johnson  v.  Stagg,  Miss.  (Walk.)  406  ;  Harrington  v    Allen, 

2  Johns.  (N.  Y.)  510.  48  Miss.  493  ;    Routh  v.  Spencer,  38  Ind. 

2  Corning  v.  Murray,  3  Barb.  (N.  Y.)  393;  Peychaud  v.  Citizens'  Bank,  21  La. 
652.  Ann.  262  ;  Ilarang  v.  Plattsmier,  lb.  426. 

423 


§§  559,  560.]      REGISTRATION   AS   AFFECTING   PRIORITY. 

under  the  mortgage  recorded  next  in  order  of  time,  obtains  only 
an  equity  of  redemption  of  the  prior  mortgage.^ 

559.  Though  the  record  be  destroyed.  —  The  destruction  of 
the  record  of  a  deed  in  no  manner  affects  the  constructive  notice 
afforded  by  its  having  been  recorded.^  If  the  mortgage  itself  has 
been  preserved,  the  recorder's  certificate  of  its  having  been  duly 
recorded  is  of  the  highest  class  of  evidence.^  So,  also,  the  index 
book  in  which  the  deed  is  described,  and  its  record  certified  in  the 
proper  book,  are  good  evidence  of  the  fact  that  the  deed  was  re- 
corded.* Other  evidence  may  show  that  the  deed  Avas  filed  for 
record  ;  and  when  this  is  the  case,  the  testimony  of  an  attorney 
of  a  purchaser,  that  he  examined  an  abstract  of  the  title  to  the 
property,  which  purported  to  be  a  full  and  complete  abstract,  and 
did  not  find  a  prior  deed  of  trust  upon  the  premises,  is  not  suffi- 
cient to  show  that  there  was  no  record  of  it,  as  it  does  not  follow 
that  the  abstract  was  what  it  purported  to  be.^ 

Where  the  registry  office  and  its  records  have  been  destroyed 
by  fire,  evidence  of  the  execution  of  a  mortgage  and  of  its  loss, 
with  slight  circumstances  in  regard  to  the  recording  of  it,  have 
been  held  enough  to  sustain  a  presumption  that  it  was  recorded 
as  against  a  prior  mortgagee  who  claims  priority  on  the  ground 
that  such  mortgage  was  never  recorded.^ 

560.  Purchase  without  notice  of  unrecorded  mortgage.  — 
Any  one  purchasing  land  in  good  faith,  and  without  notice  of  an 
unrecorded  mortgage,  takes  it  discharged  of  the  lien  ; '''  and  he  can 
convey  a  good  title  to  it,  although  the  mortgage  is  recorded  before 
he  conveys  and  his  vendee  has  notice  of  it.^  Having  no  actual 
notice  of  the  mortgage,  the  purchaser  is  not  bound  to  look  beyond 

1  Tice  V.  Annin,  2  Johns.  (N.  Y.)  Ch.  "^  Holbrook  v.  Dickenson,  56  111.  497  ; 
12.');  Mathews  v.  Aikin,  1  N.  Y.  595;  Hodgen  v.  Gutterj,  58  111.  431  ;  Ohio  Life 
Vanderkemp  v.  Shelton,  11  Paige  (N.  Y.),  Ins.  Co.  v.  Ledyard,  8  Ala.  866  ;  Burke  v. 
28  ;  Gilbert  v.  Averill,  15  Barb.   (N.  Y.)  Allen,  3  Yeates  (Pa.),  351. 

20;  Buchanan  v.  International  Bank,  78  »  Rounds  v.  McChesney,  7  Cow.  (N.  Y.) 

ill-  500.  360 ;  Jackson  v.  Van  Valkenburgh,  8  Cow. 

2  Steele  v.  Boone,  75  111.  457.  (N.  Y.)  260 ;  Bush  v.  Lathrop,  22  N.  Y.  535, 
8  Alvis  V.  Morrison,  63  111.  181.  549  ;  Jackson  v.  Given,  8  Johns.  (N.  Y.) 

*  Alvis  V.  Morrison,  supra.  137  ;  Cook  v.  Travis,  20  N.  Y.  400;  Losey 
6  Steele  V.  Boone,  75  111.  457.                        v.  Simpson,  11  N.  J.  Eq.  (3  Stockt.)  246. 

*  Alston  V.  Alston,  4  S.  C.  116. 

424 


EFFECT    OF   A   RECORD    DULY   MADE.  [§  561. 

the  line  of  title  in  bis  grantor  ;  and  finding  that  he  acquired  a 
good  title  he  is  not  bound  to  look  further ;  he  acquires  all  the 
right  and  title  that  bis  grantor  acquired.  His  grantor  being  en- 
titled to  protection  against  a  prior  unrecorded  mortgage,  he  is 
entitled  to  the  same  protection,  notwithstanding  the  notice  he  him- 
self had  of  such  mortgage,  and  although  he  is  not  a  purchaser  for 
a  valuable  consideration. ^ 

Not  only  is  a  purchaser  without  notice  of  a  prior  unrecorded 
mortgage,  or  of  other  equitable  claim  to  the  property,  entitled  to 
protection,  even  though  he  takes  the  title  from  one  who  had  act- 
ual notice  of  such  claim,  but  also  a  purchaser  with  notice  from^ 
one  who  was  entitled  to  protection  as  a  bond  fide  purchaser  with- 
out notice  is  himself  entitled  to  protection  against  the  previous 
equitable  claim  upon  the  estate  ;  for  otherwise  a  bond  fide  pur- 
chaser might  be  deprived  of  the  power  of  selling  his  property  for 
its  full  value.  This  protection  extends  to  all  persons  claiming 
through  the  mortgage,  whether  they  had  notice  at  the  time  of  the 
purchase  or  not.^ 

561.  When  a  mortgage  is  made  by  one  before  he  has  ac- 
quired title.  —  If  one  having  no  title  to  land  conveys  it  in  mort- 
gage with  covenants  of  warranty,  and  this  is  duly  recorded,  and 
afterwards  the  mortgagor  acquires  title  to  the  land,  the  estoppel 
by  which  he  is  bound  under  the  covenants  is  turned  into  a  good 
estate  in  interest  in  the  mortgagee,  so  that  by  operation  of  law 
the  title  is  considered  as  vested  in  him  in  the  same  manner  as  if  it 
had  been  conveyed  to  the  mortgagor  before  he  executed  the  mort- 
gage. The  mortgagor  is  estopped  to  say  he  "was  not  then  seised. 
Then,  if  the  mortgagor  executes  another  mortgage,  and  this  and 
the  deed  by  which  the  mortgagor  acquired  his  title  are  both  re- 
corded together,  which  mortgagee  has  the  better  title  ?  The  es- 
toppel binds  not  only  the  mortgagor  and  his  heirs  but  his  as- 
signee as  well.  The  second  mortgagee  is  therefore  estopped  to 
aver  that  the  grantor  was  not  seised  at  the  time  of  his  making 
the  first  mortgage,  and  that  mortgage  being  first  recorded  must 
have  priority.^ 

1  Wood  V.  Cliiipin,  13  N.  Y.  509  ;  "Web-  2  Varick  v.  Briggs,  6  Paige  (X.  Y.),  323 ; 

stcr  V.  Van  Steenbergh,  46  Barb.  (N.  Y.)  Cook  v.  Travis,  22  Barb.  (N.  Y.)  338;  20 

211  ;  Crane   v.  Turner,  7    Hun   (N.  Y.),  N.  Y.  400. 

357.  8  "White  v.  Patten,  24  Pick.  (Mass.)  324 ; 

425 


§  562.]  REGISTRATION   AS   AFFECTING   PRIORITY. 

562.  Deeds  made  and  recorded  subsequently  to  the  mort- 
gage are  not  notice  to  the  mortgagee.  —  After  the  mortgage 
is  made  and  recorded,  the  record  of  any  deeds  subsequently  made 
by  the  mortgagor  is  not  notice  to  the  mortgagee  ;  ^  and  if  he  has 
no  actual  knowledge  of  any  such  subsequent  deed,  he  may,  with- 
out receiving  anything  upon  the  mortgage  debt,  release  any  por- 
tion of  the  mortgaged  property  to  the  mortgagor  without  impair- 
ing his  security  upon  the  remaining  land  for  the  whole  mortgage 
debt,  although  if  he  had  notice  of  a  sale  of  any  part  of  the  re- 
maining land,  he  might  be  obliged  to  abate  a  proportionate  part 
of  the  mortgage  debt  in  order  to  protect  the  purchaser.  The 
equity  which  entitles  a  subsequent  mortgage  incumbrancer  to  the 
benefit  of  such  a  release,  arises  only  when  the  first  mortgagee 
gives  it  with  knowledge  at  the  time  of  the  existence  of  the  sub- 
sequent incumbrance.  If  the  subsequent  incumbrance  be  a  me- 
chanic's lien,  the  mere  fact  that  the  building  was  commenced 
after  the  mortgage  was  given,  and  that  the  mortgagee  knew  this, 
is  not  sufficient  to  charge  him  with  knowledge  of  the  lien.^ 

Whatever  may  be  the  equities  of  the  subsequent  mortgagee,  a 
prior  mortgagee  is  not  bound  by  them  unless  he  has  actual  notice, 
or  such  notice  as  should  put  him  upon  inquiry.^  There  can  be 
no  retrospective  effect  to  the  record.  A  mortgagee,  having  re- 
corded his  deed,  secures  the  protection  of  the  registry  laws,  and 
he  is  not  required  to  search  the  record  from  time  to  time  to  see 
whether  other  conveyances  have  been  put  upon  the  record.    While 

Tefift  V.  Munson,  57  N.  Y.   97  ;  Farmers'  (N.  Y.)  346  ;  Stuyvesant  v.  Hall,  2  Barb. 

Loan  &  Trust  Co.  t'.  Maltby,  8  Paige  (N.  (N.  Y.)    Ch.    151;  Kaynor   v.  Wilson,  6 

Y.),  361  ;  Doyle  I'.  Peerless  Petroleum  Co.  Hill    (N.    Y.),  469;    Taylor   v.   Maris,  5 

44  Barb.  (N.  Y.)  239  ;  Wark  v.  Willard,  13  Rawle  (Pa.),  51  ;  Hill  v.  McCarter,  27  N. 

N.  H.  389;  Kimball  v.  Blaisdell,  5  N.  H.  J.   Eq.  41  ;  Blair  v.  Ward,  2  Stockt.  (N. 

533;  Somes  v.   Skinner,  3   Pick.  (Mass.)  J.)    126;  Van   Orden  v.  Johnson,  1  Mc- 

52;  Pike  v.  Galvin,  29  Me.  183  ;  Philly  v.  Carter  (N.  J.),  376  ;  Hoy  v.  Bramhall,  19 

Sanders,  11  Ohio  St.  490  ;  Jarvis  v.  Aikens,  K  J.  Eq.  563  ;  Cooper  v.  Bigly,  13  Mich. 

25  Vt.  635.     See,  however.  White  &  Tu-  463;  Lieby  y.  Wolf,  10  Ohio,  83  ;  Howard 

dor's  Lead.  Cases  in  Eq.  4th  Am.  ed.  vol.  Ins.  Co.  v.  Halsey,  8  N.  Y.  271  ;  Wheel- 

2,  pt.  1,  p.  212.  wright  v.  De  Peyster,  4  Edvv.  (N.  Y.)  Ch. 

1  Birnie  v.  Main,  29  Ark.  591  ;  George  232;    Talmage  v.    Wilgers,   lb.   239,  n. ; 

V.  Wood,  9  Alien  (Mass.),  80;  James  v.  Stuyvesant  v.  Hone,  1   Sandf.  (N.  Y.)  Ch. 

Brown,  11   Mich.  25;  Doolittle  v.  Cook,  419;  Deuster  v.  McCamus,  14  Wis.  307  ; 

75  111.  3.54  ;  Iglehart  v.  Crane,  42  III.  261  ;  Straight  v.  Harris,  14  Wis.  509. 
Halsteads  v.  Bank  of  Ky.  4  J.  J.  Marsh.        '^  Ward  v.  Hague,  25  N.  J.  Eq.  397. 
(Ky.)   558;    King  v.  McVickar,  3  Sandf.         ^  Deuster   v.  McCamus,  14  Wis.  307; 

(N.  Y.)  Ch.  192  ;  Truscott  v.  King,  6  Barb.  Straight  v.  Harris,  lb.  509. 
426 


EFFECT    OF    A   RECORD    DULY    MADE.  [§§  563,  564. 

the  law  requires  exevy  man  to  deal  with  his  own  so  as  not  to  injure 
another,  it  imposes  a  greater  obligation  on  the  second  mortgagee 
to  take  care  of  his  own  interests,  than  upon  the  first  mortgagee 
to  take  care  of  them  for  him.  To  make  it  the  duty  of  the  first 
mortgagee  to  inquire  before  he  acts,  lest  he  may  injure  some  one, 
would  be  to  reverse  this  rule,  and  make  it  his  duty  to  do  for  the 
second  mortgagee  what  the  latter  should  do  for  himself.^ 

In  like  manner,  the  recording  of  a  mortgage  affords  no  notice 
whatever  to  a  prior  purchaser  of  the  land,  who  is  in  possession 
under  a  bond  for  a  deed,  so  that  the  mortgagee  had  constructive 
notice  of  his  rights,  and  without  actual  notice  he  may  lawfully 
complete  his  payments  to  his  vendor,  without  becoming  liablj?  to 
such  mortgagee. 2 

563.  The  extent  of  the  lien.  —  The  record  of  the  mortgage  is 
notice  of  an  incumbrance  for  the  amount  specified  in  it,  or  so  re- 
ferred to  as  to  put  subsequent  purchasers  upon  inquiry  as  to  the 
extent  of  the  lien.^  It  is  not  notice  of  any  claim  which  is  not  so 
specified  or  referred  to.^  Subsequent  purchasers  are  bound  by 
nothing  more  than  is  disclosed  by  record,  unless  express  notice  is 
proved.  As  against  them,  if  the  mortgage  debt  is  not  payable 
with  interest  they  cannot  be  pi'ejudiced  by  any  change  of  interest; 
although  in  case  there  be  other  security  for  the  debt,  they  cannot 
object  to  the  application  of  that  to  the  payment  of  interest  in  the 
first  place.^  But  actual  notice  of  the  amount  secured  by  a  mort- 
gage is  binding  upon  a  subsequent  purchaser,  although  there  be  a 
mistake  in  the  record.^ 

564.  Extension  of  mortgage.  —  An  agreement  for  further 
time,  and  a  higher  rate  of  interest,  unless  duly  executed  and  re- 
corded, is  not  binding  upon  the  property,  or  upon  subsequent  pur- 
chasers, unless  duly  executed  and  recorded.  It  is  merely  a  per- 
sonal obligation  between  the  parties,  and  the  increased  indebted- 
ness cannot  operate  as  a  lien  upon  the  land."  An  agreement  for 
extension  duly  recorded,  but  which  does  not  identify  the  mort- 

1  James  V.  Brown,  11  Mich.  25  ;  Birnie  ^  j^ash   v.   Edgcrton,    13    Minn.    210. 

V.  Main,  29  Ark.  591.    See  §  372.  ^  Frost  v.  Beckman,  1  Johns.  (N.  Y.)  Ch. 

«  Doolittle  I'.  Cook,  75  111.  354.  288. 

8  Youngs  V.    Wilson,   27  N.   Y.   351  ;  ^  See  §  361 ;  Davis  v.  Jewett,  3  Greene 

Dean  v.  De  Lezardi,  24  Miss.  424.  (Iowa),  226  ;  Gardner  v.  Emerson,  40  111. 

*  Hinchman  v.  Town,  10  Mich.  508.  296. 

427 


§§  565,  566.]      REGISTRATION   AS   AFFECTING   PRIORITY. 

gage  by  any  sufficient  reference,  has  no  greater  effect  by  reason 
of  the  record.^ 

5Q5.  Rate  of  interest.  —  The  mortgage  is  a  lien  only  for  the 
rate  of  interest  specified  in  it,  or  for  the  rate  established  by  law, 
when  it  is  simply  made  payable  with  interest.^  If  the  parties  to 
the  mortgage  subsequently  agree  upon  an  advanced  rate,  this 
agreement  is  not  binding  upon  subsequent  purchasers,  unless  it  is 
executed  with  the  formalities  which  entitle  it  to  be  recorded,  and 
is  in  fact  duly  recorded  before  others  acquire  any  interest  in  the 
property. 

In  like  manner,  where  a  mortgage  was  given  without  interest, 
but  with  a  verbal  agreement  that  the  mortgagee  should  receive 
certain  rents  in  lieu  of  interest,  he  cannot  as  against  a  subsequent 
mortgagee,  who  had  no  notice  of  this  agreement,  enlarge  his 
demand  beyond  what  appeared  of  record,  and  claim  a  lien  upon 
the  property  for  the  payment  of  interest  as  well  as  principal.^ 

After  the  making  of  a  mortgage,  the  parties  to  it  cannot  make 
an  agreement  for  the  payment  of  a  higher  rate  of  interest  than 
that  stipulated  for  in  the  mortgage,  that  will  be  a  lien  upon  the 
premises  as  against  a  purchaser  of  the  property  before  such 
agreement  was  made,  or  after  it  was  made,  but  without  notice  of 
it.4 

But  in  case  of  a  mortgage  for  the  purchase  money,  the  wife 
having  no  right  of  dower  except  in  the  surplus  above  the  mort- 
gage, an  agreement  to  pay  a  higher  rate  of  interest  in  considera- 
tion of  an  extension  of  time  may  be  enforced  against  the  property, 
so  far  as  the  wife's  dower  is  concerned.^ 

566.  The  recording  acts  do  not  apply  to  mortgages  simul- 
taneously recorded.  —  The  recording  acts  have  no  application  to 
mortgages  executed  and  recorded  simultaneously.®  Neither  have 
they  any  application  to  mortgages  executed  at  the  same  time  and 
held  by  the  same  person,  for  he  has,  of  necessity,  notice  of  both 

1  Bassett  v.  Hathaway,  9  Mich.  28.  ^  Thompson  v.  Lyman,  28  "Wis.  266. 

2  See  §  361  ;  Whittacre  v.  Fuller,  .5  «  Stafford  v.  Van  Eensselear,  9  Cow. 
Minn.  508.  (N.  Y.)  316;   affg  S.  C.  Hopk.  (N.  Y.) 

8  St.  Andrew's  Church  v.  Tompkins,  7  569  ;  Douglass  v.  Peele,  Clarke  (N.  Y.), 
Johns  (N.  Y.)  Ch.  14.  563. 

*  Bassett  v.  McDonel,  13  Wis.  444. 

428 


EFFECT   OF   A   RECORD   DULY   MADE.  [§  566. 

mortgages.!  The  record  of  one  before  the  other  is  in  such  case 
without  effect.  Such  mortgages  are  concurrent  liens  whether  in 
the  hands  of  the  mortgagee,  or  in  the  hands  of  assignees.  Nor 
have  they  any  application  when  the  mortgages  expressly  declare 
that  neither  is  to  have  precedence  of  the  other,  but  are  to  be  alike 
security  for  the  several  debts.^  Nor  have  they  any  application  as 
between  two  mortgages  given  for  purchase  money  at  the  same 
time  ;  and  when  this  fact  appears  upon  the  face  of  the  deeds,  the 
prior  record  of  one  gives  it  no  priority  over  the  other.^  The 
rights  of  the  parties  in  such  cases  may  sometimes  be  controlled 
by  other  considerations ;  and  if  there  be  any  priority  of  one  over 
the  other,  that  priority  is  determined  by  considerations  of  equity. 
Equitable  rights  and  agreements  as  to  priority  are  recognized  and 
enforced  only  in  courts  of  equity.* 

The  only  effect  of  recording  an  assignment  of  a  mortgage  is 
to  protect  the  assignee  from  a  subsequent  sale  of  the  mortgage  ; 
the  assignment  when  not  recorded  is  void  as  against  a  subsequent 
purchaser  of  the  mortgage.  Therefore,  when  two  simultaneous 
mortgages  of  the  same  land  are  made  under  an  agreement  that 
they  shall  be  equal  liens,  the  prior  record  of  one  gives  it  no  pref- 
erence over  the  other.  Such  a  mortgage  is  not  within  the  terms 
of  a  statute  declaring  an  unrecorded  conveyance  void  against  a 
subsequent  conveyance  first  recorded.  A  simultaneous  conversance 
is  not  a  subsequent  conveyance.  An  assignment  is  a  conveyance 
of  a  mortgage,  and  if  it  be  not  recorded  it  is  void  against  a  sub- 
sequent purchaser  of  the  mortgage.^ 

If  an  assignee  of  one  of  two  simultaneous  mortgages  be  re- 
garded as  a  subsequent  purchaser  of  some  interest  in  the  real 
estate,  then  he  is  affected  by  the  record  of  the  other  mortgage, 
as  well  as  that  of  which  he  has  taken  an  assignment ;  and  if  either 
or  both  contain  a  recital  showing  that  they  are  simultaneous,  or 
that  both  were  given  for  the  purchase  money  of  the  same  land, 
then  the  prior  record  of  one  can  give  it  no  preference  over  the 
other.** 


1  Gausen  v.  Tomlinson,  23  N.  J.  Eq.  *  Jones  v.  Phelps,  2  Barb.  (N.  Y.)  Ch. 
405.  440. 

2  Howard  v.  Chase,  104  Mass.  249.  ^  Greene  v.  Warnick,  64  N.  Y.  220. 
'  Greene  v.  Deal,  N.  Y.  W.  Dig.,  revers-  ^  Greene  v.  Warnick,  supra. 

ing  S.  C.  4  Hun,  703. 

429 


§§  567,  568.]      REGISTRATION   AS  AFFECTING   PRIORITY. 

667.  Simultaneous  mortgages  for  purchase  money.  — Where 
two  or  more  mortgages  are  made  simultaneously  to  different  per- 
sons, and  are  so  connected  with  each  other  that  they  may  be  re- 
garded as  one  transaction,  each  mortgagee  having  notice  of  the 
other  mortgage,  they  will  be  held  to  take  effect  in  such  order  of 
priority  or  succession  as  shall  best  carry  into  effect  the  intention 
and  best  secure  the  rights  of  all  the  parties.^  If  there  be  no  in- 
tention to  give  any  preference  to  either,  no  preference  as  between 
the  mortgagees  can  be  obtained  by  priority  of  record.^  The  re- 
cording acts  in  such  case  have  no  application.  But  if  one  of  such 
mortgages  be  assigned  to  a  purchaser  in  good  faith  without  no- 
tice of  any  superior  equity  in  the  holder  of  the  other  mortgage, 
such  assignee  is  entitled  to  the  priority  gained  by  an  earlier  rec- 
ord of  his'  mortgage,  even  if  the  other  mortgage  was  superior  in 
equity.^ 

If  two  mortgages  be  made  to  the  same  person  to  secure  pur- 
chase money,  though  in  the  mortgagee's  hands  one  has  no  priority 
over  the  other,  he  may  assign  one  in  such  a  way  as  to  give  it 
priority  over  the  other  subsequently  assigned  by  him. 

568.  Simultaneous  mortgages  of  whicli  one  is  for  purchase 
money.  —  If  a  purchaser  of  land,  at  the  instant  of  receiving  his 
deed,  executes  and  delivers  two  mortgages  of  it,  one  to  his  grantor, 
to  secure  a  payment  of  a  part  of  the  purchase  money,  and  the 
other  to  a  third  person,  and  all  the  deeds  are  entered  for  record  at 
the  same  moment,  the  mortgage  to  his  grantor  takes  precedence. 
The  deed  and  the  mortgage  for  the  purchase  money  are  parts  of 
one  transaction,  and  give  the  purchaser  only  an  instantaneous 
seisin.  Moreover,  the  deed  and  mortgages  being  all  delivered  at 
the  same  time,  the  several  grantees  must  be  considered  as  know- 
ing all  that  took  place  concerning  them,  and  the  third  person, 
therefore,  as  knowing  of  the  mortgage  for  the  purchase  money, 
to  which  his  own  became  subject  as  effectually  by  his  knowledge 
of  its  existence,  as  it  would  have  been  if  it  had  been  posterior  in 
time  of  entry  for  record.^ 

1  Pomeroy  v.  Latting,  15  Gray  (Mass.),  545  ;  Sparks  i'.  State  Bank,  7  Blackf.  (Ind.) 

435  ;  Jones  v.  Phelps,  2  Barb.  (N.  Y.)  Ch  4G9. 

440;  Douglass  v.  Peele,  Clarke  (N.  Y,),  3  Corning  v.  Murray,  3  Barb.  (N.  Y.) 

Ch.  563.  652. 

a  Rhoades  v.  Canfield,  8  Paige  (N.  Y.),  *  Clark  v.  Brown,  3  Allen  (Mass.),  509. 
430 


EFFECT   OF  A   RECORD   DULY   MADE.  [§  569. 

But  although  executed  and  delivered  at  the  same  time,  so  that 
they  take  effect  upon  the  estate  at  the  same  instant,  if  the  record- 
ing of  the  purchase  money  moi'tgage  is  delayed  and  the  other  is 
first  recorded,  it  will,  in  the  absence  of  any  notice  of  the  pur- 
chase money  mortgage,  be  held  to  be  superior  in  right.^ 

569.  The  English  doctrine  of  tacking  ^  has  no  application  to 
registered  mortgages.  These  are  payable  according  to  the  pri- 
ority of  their  record.^  Another  kind  of  tacking  arises  when  the 
mortgagee  attaches  to  the  mortgage  lien  other  debts  not  included 
in  the  mortgage.  This  he  may  do,  so  far  as  the  mortgagor  is 
concerned,  when  an  express  or  implied  agreement  exists  allow- 
ing him  to  do  so  ;  but  he  cannot  tack  other  debts  to  his  mortgage 
as  against  intervening  mortgagees  and  judgment  creditors.* 

1  Dusenbury  v.   Hulbert,  2  Thomp.  «Sb  McDowell,  Walk.  (Mich.)  175;  Chandler 

Co.  (N.  Y.)  177.  V.  Dyer,  37  Vt.  345. 

-  Tacking  in  England  was  abolished  by  It  is  prohibited  by  statute  in  Georgia, 

the  Vendor  and  Purchaser  Act  of  1874.  Code,  1873,  §  19G2. 
The  dimensions  to  which  the  learning  on         See  chapter  xxii.  on  "Redemption." 
this  subject  had  grown  may  be  gathered        *  Orvis  i\  Newell,  17  Conn.  97;  Colqu- 

from  the  fact  that  in  Mr.  Coventry's  edi-  houn  v.   Atkinsons,  6  Munf.  (Va.)  550; 

tion  of  Powell  on  Mortgages,  published  Siter  i'.  McClanachan,  2  Gratt.  (Va.)  280; 

in    1822,   it    occupies    one    hundred    and  Towner    v.  Wells,  8  Ohio,  136;    Hughes 

twenty-five  pages.  v.  Worley,  1   Bibb  (Ky.),  200;    Chase  v. 

8  See  §§  357,  360;    Grant  v.  Bank  of  McDonald,  7  Har.  &  J.  (Md.)  160;  Averill 

the  U.   S.   1    Caines  Cas.   112;   Wing  v.  u.  Guthrie,  8  Dana  (Ky.),  82. 

431 


CHAPTER  XIII. 

NOTICE  AS   AFFECTING   PKIORITY. 

1.  Notice  as  affecting  Priority  under  the  Registry  Acts. 

570.  The  ground  on  which  notice  is  allowed  to  affect  regis- 
tration. —  Under  the  local  registry  acts  in  England,  it  has  always 
been  conceded  that  notice  of  a  prior  deed  would  supersede  the 
effect  of  a  prior  registry.^  The  preamble  of  the  statute  of  the  7th 
of  Anne,  providing  for  a  registry  in  the  county  of  Middlesex,  re- 
cites in  substance  that,  "  by  the  different  and  secret  ways  of  con- 
veying lands,  such  as  are  ill-disposed  have  it  in  their  power  to 
commit  frauds,  and  frequently  do  so,  by  means  whereof  several 
persons  have  been  undone  in  their  purchases  and  mortgages,  by 
prior  and  secret  conveyances  and  fraudulent  incumbrances ;  "  and 
therefore  it  is  enacted  that  a  memorial  of  conveyances,  made  after 
the  27th  of  September,  1709,  of  lands  in  that  county,  maybe  reg- 
istered ;  and  that  every  deed  "shall  be  adjudged  fraudulent  and 
void  against  any  subsequent  purchaser  or  mortgagee  for  valuable 
consideration,  unless  such  memorial  be  registered  as  by  this  act  is 
directed,  before  the  registering  of  the  memorial  of  the  deed  or 
conveyance  under  which  such  subsequent  purchaser  or  mortgagee 
shall  claim."  In  a  leading  case,  involving  the  construction  of  this 
act,  Lord  Hardwicke  asks,  what  appears  by  the  preamble  to  be 
the  intention  of  the  act?  "Plainly,"  he  answers,  "to  secure 
subsequent  purchasers  and  mortgagees  against  prior  secret  con- 
veyances and  fraudulent  incumbrances.  Where  a  person  had  no 
notice  of  a  prior  conveyance,  there  the  registering  his  subsequent 
conveyance  shall  prevail  against  the  prior  ;  but  if  he  had  notice 

^  The  registry  acts  of  England  are  as  registry  act,  6  Anne,  c.  2,  which  is  mate- 
follows  :  West  Riding  of  Yorkshire,  5  rially  different  from  the  English,  the  record 
Anne,  c.  18 ;  East  Riding  of  Yorkshire  and  gives  absolute  priority,  and  the  doctrine  of 
Kingston  on-Hull,  6  Anne,  c.  35 ;  Middle-  notice  is  not  admitted.  Bushell  v.  Bush- 
sex,  7  Anne,  c.  20 ;  and  North  Riding  of  ell,  1  S.  &  L.  98. 
Yorkshire,'8  Geo.[2,  c.  6,     Under  the  Irish 

432 


UNDER   THE   REGISTRY   ACTS.  [§  571. 

of  a  prior  conveyance,  then  that  was  not  a  secret  conveyance  by 
which  he  could  be  prejudiced."  ^  After  referring  to  several  cases 
on  the  registry  acts,^  he  continues  :  "  Consider,  therefore,  what 
is  the  ground  of  all  this,  and  particularly  of  those  cases  which 
went  on  the  foundation  of  notice  to  the  agent.  The  ground  of 
it  is  plainly  this,  that  the  taking  of  a  legal  estate  after  notice 
of  a  prior  right  makes  a  person  maid  fide  purchaser  ;  and  not 
that  he  is  not  a  purchaser  for  a  valuable  consideration  in  every 
other  respect.  This  is  a  species  of  fraud  and  dolus  malus  itself ; 
for  he  knew  the  first  purchaser  had  the  clear  right  of  the  estate, 
and  after  knowing  that,  he  takes  away  the  right  of  another  per- 
son by  getting  the  legal  estate Now,  if  a  person  does  not 

stop  his  hand,  but  gets  the  legal  estate  when  he  knew  the  right 
was  in  another,  machinatur  ad  circiivweniendum.  It  is  a  maxim, 
too,  in  our  law,  Frans  et  dolus  nemini  patrocianari  dehenty 
Fraud  or  bad  faith,  therefore,  is  the  ground  on  which  the  court, 
in  this  as  well  as  in  other  cases,  place  the  doctrine  of  notice  as 
modifying  the  registry  acts.^ 

671.  The  policy  of  admitting  notice  to  affect  the  priority 
given ''by  registration.  —  The  doctrine  of  notice  as  laid  down 
by  Lord  Hardwicke  has  been  repeatedly  affirmed  in  England, 
although  it  has  been  the  subject  of  some  criticism  ;  ^  and  regret 
has  been  expressed  that  it  has  so  far  superseded  the  terms  of  the 
registry  acts.  In  Davis  v.  The  Earl  of  Strathmore,^  Lord  Eldon 
said :  "  With  regard  to  the  observation  thrown  out  at  the  bar, 

1  Le  Neve  v.  Le  Neve,  1  Ambler,  436;  ^  16  Ves.  419;  sec,  also,  Ford  v.  White, 

White  &  Tudor's  Lead.  Cas.  vol.  2d,  p.  109,  16  Beav.  123  ;  Wyatt  v.  Barwell,  19  Vea. 

4th    Am.   ed. ;   and   see  Neal  v.  Kens,  4  438.     In  the  latter  case  Sir  Wm.  Grant 

Ga.  161.  said  :  "  It  has  been  much  doubted  whether 

'^  Forbes  i'.  Deniston,  4  Bro.  P.  C.  189;  courts   ought   ever   to   have  suffered   the 

Blades  v.  Blades,  1  Eq.  Cas.  Abr.  358,  pi.  question  of  notice  to  be  agitated  as  against 

2  ;  Cheval  v.  Nichols,  1   Stra.  664.  a  party  who  has  duly  registered  his  con- 

8  And  see,  also,  Hine  v.  Dodd,  2  Atk.  veyance;  but  they  have  said,  'We  cannot 

275 ;  Tunstall   v.  Trappes,  3    Sim.   301  ;  permit  fraud  to  prevail ;  and  it  shall  only 

Cheval  v.  Nichols,  Str.  664.     In  the  lat-  be  in  cases  where  the  notice  is  so  clearly 

ter  case  it  was  said:  "For  where  a  man  proved  as  to  make   it   fraudulent  in   the 

purchases  with  notice  of  a  prior  incum-  purchaser  to  take  and  register  a  convey- 

brance,  he  purchases  with  an  ill  conscience,  ance  in   prejudice  to   the  known  title  of 

and  in  a  court  of  equity  his  purchase  will  another,  that  we  will  suffer  the  registered 

never  be  established."  deed  to  be  affected.'  " 

*  Benham  v.  Keanc,  7  Jur.  N.  S.  1096  ; 
J.  &  II.  685,  and  cases  cited. 

VOL.  I.                                   28  433 


§  572.]  NOTICE    AS   AFFECTING    PRIORITY. 

that  the  registry  acts  were  overturned  by  Lord  Hardwicke,  I 
should  feel  myself  bound  to  consider  those  decisions  right  if  they 
rested  upon  his  authority  alone  ;  but,  confirmed  as  that  doctrine 
has  been  ever  since  his  time  in  cases  directly  upon  those  acts,  and 
admitted  to  be  right  in  questions  upon  other  acts  of  parliament, 
I  dare  not  venture  to  contradict  it."  In  a  recent  case  before  the 
Court  of  Appeal  ^  in  chancery,  the  Chancellor,  Lord  Hatherley, 
after  referring  to  the  case  of  Le  Neve  v.  Le  Neve  with  approba- 
tion, said : ' "  Whether  it  be  prudent  or  imprudent  that  the  law 
should  continue  in  that  state  is  not  a  matter  which  I  have  to 
discuss  on  the  present  occasion.  Some  think  that  the  law  should 
be  rendered  like  that  relating  to  ship  registry  ;  but  ship  registers 
are  of  a  very  different  character,  and  how  far  one  rule  or  the  other 
is  right  is  not  a  matter  which  it  is  easy  for  anybody  to  determine. 
What  has  hitherto  repressed  those  who  have  been  anxious  to  do 
away  with  this  doctrine  of  notice  is,  that  there  would  always  re- 
main a  very  strong  feeling  on  the  part  of  mankind  against  a  per- 
son who,  knowing  distinctly  that  his  neighbor  had  lent  a  large 
sum  of  money,  took  a  security  subject  to  that,  and  then  obtained 
priority  by  a  previous  registration,  doing  that  which,  as  I  held  in 
Benham  v.  Keane^  this  court  will  not  allow  to  be  done.  This 
court  will  not  allow  a  man  who  has  already  pledged  his  estate  to 
pledge  it  a  second  time,  and  will  not  allow  any  person  to  assist 
him  in  so  doing,  by  lending  a  second  sum  of  money  in  this  way." 

572.  The  doctrine  of  notice  as  affecting  priority  is  gen- 
erally adopted  in  this  country. — Subsequent  purchasers,  who 
have  notice  of  a  prior  unrecorded  mortgage,  are  affected  by  their 
knowledge  of  it  in  the  same  way  that  the  prior  record  of  the 
mortgage  would  affect  them.^  The  record  is  constructive  notice 
only  ;  but  it  is  notice  to  all  the  world  that  comes  after.  Any 
other  notice  must  in  the  nature  of  things  be  limited  in  the  extent 
of  it,  but  so  far  as  it  goes,  its  effect  is  equitably  not  any  less, 
certainly,  than  that  of  the  record.     Having  notice  of  a  mortgage 

1  Rolland  v.  Hart,  L.  R.  6  Ch.  App.  son  v.  Dunn,  15  Ala.  501  ;  Underwood  v. 

678,  and  see  numerous  cases  cited.  Ogden,  6  B.  Mon.  (Ky.)  606 ;  Lambert  v. 

'^  1  J.  &  H.  685  ;  7  Jur.  (N.  S.)  1096.  Nanny,   2   Munf.    (Va.)    196;    Butler  v. 

3  Conover  r.  Von  Mater,  IS  N.  J.  Eq.  Viele,   44   Barb.   (N.   Y.)    166;    Fort   v. 

481;  Bell  V.  Thomas,  2  Iowa,  384  ;  Sparks  Burch,  5  Den.    (N.  Y.)  187;  Jackson  v. 

V.    State    Bank,   7    Blackf.    (Ind.)    469 ;  Van  Valkenburgh,  8  Cow.  (N.  Y.)   260 ; 

Woodworth  v.  Guzman,  1  Cal.  203;  Nel-  Musgrove  v.  Bonser,  5  Oregon,  313. 

434 


UNDER    THE    REGISTRY   ACTS.  [§  573. 

defectively  recorded,  or  not  recorded  at  all,  a  subsequent  pur- 
chaser cannot  claim  priority  for  bis  own  deed.^  As  between  him 
and  the  mortgagee,  it  is  the  same  as  if  the  prior  mortgage  had 
been  duly  recorded.^  Therefore,  priority  among  mortgagees  and 
grantees  depends  not  only  upon  the  date  of  their  deeds  and  the 
date  of  their  record,  but  also  upon  the  knowledge  they  have  of 
the  true  state  of  the  facts  as  to  the  title,  and  of  the  rights  and 
equities  of  those  who  have  not  fixed  their  priority  by  duly  re- 
cording their  deeds. ^ 

Undoubtedly  it  was  the  purpose  of  the  laws  providing  for  the 
registry  of  conveyances  of  land,  to  enable  every  one  by  this  means 
to  determine  fully  the  title  to  the  land,  without  depending  upon 
the  possession  of  the  title  deeds,  or  upon  inquiry  or  notice  outside 
of  the  registry.  The  symmetry  of  the  registry  system  has  been 
disturbed  and  broken  in  upon  by  judicial  construction,  in  order 
to  prevent  a  fraudulent  use  of  the  statute  which  it  is  to  be  pre- 
sumed the  statute  did  not  intend.  To  allow  one  who  has  actual 
or  implied  notice  of  a  prior  unrecorded  deed  of  the  same  prop- 
erty, or  such  notice  of  equitable  rights  of  other  persons  in  the 
property,  to  obtain  priority  by  recording  his  own  deed,  would  be 
to  enable  him  to  take  advantage  of  the  registrj'^  laws  to  obtain  an 
unfair  or  fraudulent  advantage  by  means  of  them.  Exceptions  to 
the  literal  application  of  the  law  have  therefore  been  engrafted 
upon  it  to  meet  the  equitable  consequences  of  such  notice.* 

573.  Exception  as  to  Ohio  and  North  Carolina.  —  As  already 
noticed,  it  has  been  questioned  whether  the  courts  ought  ever  to 
have  suffered  the  question  of  actual  notice  to  be  agitated  against 
one  whose  conveyance  is  duly  registered.^ 

The  basis  of  the  doctrine  of  notice  is,  that  it  is  unconscientious 
and  fraudulent  to  permit  a  junior  purchaser  to  defeat  a  prior  con- 
vej'^ance  or  incumbrance  of  which  he  has  knowledge.^     But  it  has 

1  Johnston  v.  Canby,  29  Md.  211  ;  Coe         ^  La   Farge   Fire   Ins.  Co.  v.   Bell,  22 
V.  Winters,  1.")  Iowa,  481  ;  Forepaugh  v.     Barb.  (N.  Y. )  54. 

Appold,  17  B.  Mon.  (Ky.)  625.  *  See  Hart  v.  Farmers'  &  Mechanics' 

2  Copeiaud  v.   Copeland,  28  Me.  525 ;     Bank,  33  Vt.  252,  per  Chief  Justice   Red- 
Smallwood  ?;.  Lewin,   15  N.   J.   Eq.    60;     field. 

Ohio,  &c  Co.  V.  Ross,  2  Md.  Ch.  25 ;  Smith  6  i>er  Sir  Wm.  Grant,  in  Wyatt  i-.  Bar- 

u.  Nettles,  13  La.  Ann.  241  ;  Pike  r.  Arm-  well,    19   Ves.   439;   per   Colcock,  J.,    in. 

stead,  1  Dev.  (N.  C.)   Eq.   110;  Solms  v.  Price  v.  White,  Bail.  Eq.  (S.  C.)  240. 

McCulloch,   5   Pa.   St.    473  ;  Jackson    v.  ^  Harrington  v.  Allen,  48  Miss.  492.. 
Van  Valkonburgh,  8  Cow.  (N.  Y.)  260. 

435 


§  574.]  NOTICE   AS   AFFECTING    PRIORITY. 

been  doubted  whether  this  doctrine  does  not  give  occasion  to  more 
fraud  than  it  prevents  ;  and  whether  vigilance  in  recording  a 
mortgage  should  not  be  rewarded  as  much  as  vigilance  in  obtain- 
ing it.i 

Under  the  registration  law  in  North  Carolina  it  is  held  that  no 
notice,  however  full  and  formal,  will  supply  the  place  of  registra- 
tion of  a  deed  of  trust  or  mortgage  ;  the  statute  declaring  that 
they  shall  not  be  valid  at  law  to  pass  any  property  as  against 
creditors  or  purchasers  for  a  valuable  consideration,  but  from  their 
registration.^ 

Under  the  recording  acts  of  Ohio  it  is  held  that  the  doctrine  of 
notice  has  no  place,  but  that  mortgages  have  priority  of  lien  in  the 
order  of  their  delivery  for  record,  whatever  notice  a  mortgagee 
may  have  of  a  prior  unrecorded  mortgage  or  other  conveyance.^ 
Inasmuch  as  a  mortgage  is  declared  to  take  effect  only  from  the 
time  it  is  left  for  record,  a  judgment  recovered  after  the  date  of 
the  mortgage,  and  before  it  is  recorded,  takes  precedence  of  it.^ 

The  admission  of  evidence  of  actual  notice  of  a  prior  unre- 
corded deed,  as  affecting  a  mortgagee's  right  of  priority,  is  at- 
tended with  all  the  danger  and  uncertainty  incident  to  parol  evi- 
dence, when  used  for  the  purpose  of  affecting  written  instruments 
and  disturbing  titles,  and  for  this  reason  the  policy  has  been 
adopted  in  these  states  of  allowing  the  whole  question  of  priority 
to  be  settled  by  the  simple  fact  of  prior  registry.  This  furnishes 
a  clear  and  certain  standard  of  decision  incapable  of  variation, 
and  thus  avoids  a  very  fruitful  source  of  litigation.^ 

574.  The  practical  effect  of  the  doctrine  of  notice  upon 
registration.  —  As  there  is  no  difference  between  the  effect  of 
the  constructive  notice  derived  from  the  recording  of  a  deed, 
and  an  actual  notice,  so  far  as  respects  the  person  receiving  such 
actual  notice,  it  may  happen  that  a  purchaser  or  mortgagee, 
though  holding  title  in  good  faith  under  a  regular  chain  of  re- 
corded conveyances,  may  yet  have  no  title  at  all,  for  the  reason 

1  Per  Hitchcock,  J.,  in  Mayham  v.  Mayham  v.  Coombs,  14  lb.  428  ;  Bloom  v. 
Coombs,  14  Ohio,  428.  Noggle,  4  Ohio    St.  45 ;  Bercaw  v.  Cock- 

2  Robinson  v.   Willoughby,    70   N.    C.  erill,  20  Ohio  St.  163,  and  cases  there  cited. 
358  ;  Fleming  v.  Burgin,  2  Ired.  (N.  C.)  And  see  Astor  v.  Welis,  4  Wheat.  466. 
Eq.  584 ;  Leggett   v.  Bullock,  Busb.   (N.  *  Mayham  v.  Coombs,  14  Ohio,  428. 
C.)  L.  283.  5  Per  Ranney,  J.,  in  Bloom  v.  Noggle, 

8  Stansell   t;.  Roberts,    13    Ohio,    148;     4  Ohio  St.  45. 
436 


UNDER  THE  REGISTRY  ACTS. 


[§  574. 


that  a  grantor  in  the  chain  of  title  had  knowledge,  when  he  took 
the  conveyance  to  himself,  of  a  prior  unrecorded  mortgage  or  con- 
veyance, which  was,  however,  recorded  before  his  own  convey- 
ance or  mortgage  to  his  grantee.^  "  Suppose,  for  instance," 
says  Chief  Justice  Shaw,  in  an  important  case  on  this  subject,^ 
*'  A.  conveys  to  B.,  who  does  not  immediately  record  his  deed. 
A.  then  conveys  to  C,  who  has  notice  of  a  prior  unregistered  deed 
to  B.  C.'s  deed,  though  first  recorded,  will  be  postponed  to  the 
prior  deed  to  B.  Then,  suppose  B.  puts  his  deed  on  record,  and 
afterwards  C.  conveys  to  D.  If  the  above  views  are  correct,  D. 
could  not  hold  against  B. ;  not  in  right  of  C,  because,  in  conse- 
quence of   actual    knowledge  of    the    prior   deed,  C.  had  but    a 


1  This  point  is  illustrated  by  the  case  of 
Van  Ren-s  lae  ■  v.  Clark,  17  Wend.  25. 
Derick  Schuyler  owned  the  premises  in 
question  on  the  25th  of  August,  1794.  He 
that  day  conveyed  them  to  James  Van 
Rensselaer,  but  the  deed  was  not  recorded 
until  January  2,  1804.  July  2,  1799,  Der- 
ick Schuyler  conveyed  the  same  premises 
to  Philip  Schuyler,  who  had  notice  of  the 
unrecorded  deed  to  James  Van  Rensse- 
laer. The  deed  to  Philip  Schuyler  was  re- 
corded October  25,  1802.  On  the  2d  of 
April,  1805,  Philip  Schuyler  conveyed  to 
Clark,  who,  in  1806,  conveyed  to  Emott, 
who,  in  1833,  conveyed  to  Miller.  The 
court  held  that  Philip  Schuyler  was  a  bond 
fide  purchaser ;  that  the  deed  to  Van  Rens- 
selaer being  recorded  before  the  deed  from 
Philip  Schuyler  to  Clark,  the  latter  took 
the  land  chargeable  with  notice  of  the  deed 
to  Van  Rensselaer  ;  that  although  neither 
Clark,  Emott,  or  Miller,  had  actual  notice 
or  knew  of  the  deed  from  Derick  Schuyler 
to  Van  Rensselaer,  and  although  upon  the 
examination  of  the  records  they  found  a 
regular  recorded  title  in  their  respective 
grantors,  yet  the  records  informed  them 
that  Derick  Schuyler  had  conveyed  the 
premises  to  Van  Rensselaer  previously  to 
the  conveyance  to  Philip  Schuyler.  It 
was  argued  that  Clark  bought  of  Philip 
Schuyler  on  the  fiiiih  of  finding  that  his 
deed  was  first  recorded,  and  that  he  should 
not  be  held  to  look  further  and  run  the 
hazard  of  actual  notice  to  Philip  Schuy- 


ler. But  it  was  held  otherwise  by  the 
court ;  which  decided,  that  to  entitle  a 
purchaser  to  protection  under  the  reecord- 
ing  acts  he  must  not  have  notice  which  is 
inconsistent  with  good  faith. 

These  principles  have  been  affirmed  in 
Schutt  V.  Large,  6  Barb.  (N.  Y.)  373; 
Ring  V.  Steele,  3  Keyes  (N.  Y.),  4.50; 
Jackson  v.  Post,  15  Wend.   (N.  Y.)  588. 

The  following  case  is  still  later.  On 
the  10th  day  of  April,  1871,  A.,  the  owner 
of  certain  lands,  mortgaged  them  for  $3,000 
to  B.,  who,  on  the  25th  of  July,  1871,  de- 
livered the  same  to  C,  and  on  the  28th  of 
October,  1871,  executed  to  him  a  formal 
assignment,  which,  with  the  mortgage,  was 
recorded  January  2,  1872.  On  September 
13,  1871,  A.  conveyed  the  premises  to  D., 
who  had  actual  knowledge  of  the  mort- 
gage to  B.,  and  of  the  consideration  he 
had  paid  for  it.  This  deed  was  recorded 
October  5,  1871.  On  the  16th  of  Jan- 
uary, 1873,  D.  executed  a  mortgage  upon 
the  premises  to  E.  for  $2,000,  who  assigned 
it  to  F.,  who  had  no  notice  of  the  first 
mortgage,  except  such  constructive  notice 
as  was  given  by  the  record.  It  was  held 
that  when  C.  put  the  first  mortgage  on 
record,  January  2,  1872,  it  was  a  complete 
and  perfect  title,  and  that  the  lien  acquired 
by  F.,  under  the  second  mortgage,  was 
subsequent  to  it.  Goelet  v.  McManus,  1 
Hun  (N.  Y.),  306. 

2  Flynt  V.  Arnold,  2  Met.  (Mass.)  619. 

437 


§  574.]  NOTICE   AS   AFFECTING   PRIORITY. 

voidable  title  ;  and  not  in  his  own  right,  because,  before  he  took 
his  deed,  B.'s  deed  was  on  record,  and  was  constructive  notice  to 
him  of  the  prior  conveyance  to  B.  from  A.  under  whom  his  title  is 
derived.     But  in  such  case,  if  before  B.  recorded  his  deed,  C.  had 
conveyed  to  D.  without  actual  notice,  then  D.,  having  neither  act- 
ual nor  constructive  notice  of  the  prior  deed,  would  take  a  good 
title.     And,  as  D.  in  such  case  would  have  an  indefeasible  title 
himself  against  B.'s  prior  deed,  so,  as  an  incident  to  the  right  of 
property,  he  could  convey  a  good   and  indefeasible  title  to  any 
other  person,  although  such  grantee  should  have  full  notice  of  the 
prior  conveyance  from  A.  to  B.     Such  purchaser,  and  all  claim- 
ing under  him,  would  rest  on  D.'s  indefeasible  title,  unaffected  by 
any  early  defect  of  title,  by  want  of  registration,  which  had  ceased 
to  have  any  effect  on  the  title,  by  a  conveyance  to  D.  without 
notice,  by  one  having  a  good  apparent  record  title."     The  emi- 
nent judge  examines  the   earlier   cases  in  Massachusetts  which 
were  in  conflict  with  these  views,  and  in  which  it  had  been  con- 
sidered  that  the   recording  of  the  first  deed,  under  the  circum- 
stances above  supposed,  might  be  evidence   of  actual  notice  to 
such  purchaser  thus  taking  his  deed  from  the  second  grantee,  but 
that  it  did  not  constitute  that  constructive  notice,  which  would  be 
conclusive,  in  favor  of  the  first  grantee.     This  is  founded  wholly 
on  the  suggestion  made  in  one  case,  that  "  Wlien  a  purchaser  is 
examining  his  title  in  the  registry  of  deeds,  and  finds  a  good  con- 
veyance to  his  grantor,  he  is  not  expected  to  look  further."  ^     Re- 
ferring to  this  proposition  as  incorrect,  Chief  Justice  Shaw  con- 
tinues :    "  If  the   object  of  any  one,   in  searching  the  record  to 
ascertain    the    goodness    of   a  title,  is   to  inquire    and    ascertain 
whether  any  one  through  whom   the   title  is   derived,  whilst  he 
had  the  title,  and  had  the  power  to  aliene  or  incumber  it,  did  so, 
then,  by  following  the  conveyances  down  from  each  former  holder 
of  the  estate  to  the  time  of  the  search,  he  could  find  the  aliena- 
tion or  incumbrance,  if  one  had  been  made  and  recorded.     The 
object  of  the  registry  is  to  give  notoriety  to  all  conveyances,  and 

1  Per  Jackson,  J.,  in  State  of  Connec-  treated  this  as  only  evidence  to  go  to  the 
ticut  V.  Briidish,  14  Mass.  296,  303.  The  jury,  tending  to  siiow  that  the  assignee  of 
head-note  in  this  case  states  a  correct  prop-  the  second  mortgage  had  actual  notice  of 
osition  of  law,  but  in  point  of  fact,  in  that  the  prior  mortgage,  and  not  as  being  con- 
case,  the  first  mortgagee  had  put  his  deed  structive  notice.  And  see  Trull  v.  Bige- 
on  record  before  the  assignment  was  made  low,  16  Mass.  406  ;  Glidden  v.  Hunt,  24 
by  the  second  mortgagee.     But  the  court  Pick.  (Mass.)  221. 

438 


UNDER   THE   REGISTRY   ACTS.  [§  575. 

make  them  certainly  known  to  one  inquiring.  If  an  ordinarily  dili- 
gent search  would  bring  the  inquirer  to  a  knowledge  of  a  prior  in- 
cumbrance or  alienation,  then  he  is  presumed  to  know  it.  It  is  this 
presumption,  and  not  the  fact  of  actual  knowledge  of  a  prior  in- 
cumbrance, which  binds  all  subsequent  purchasers,  and  makes  the 
registry  conclusive  evidence  of  notice.  It  serves  all  the  purposes 
of  actual  knowledge,  by  enabling  an  inquirer  with  ordinary  dili- 
gence to  ascertain  the  fact.  It  would  seem  that  a  search,  so  far 
as  to  ascertain  whether  any  former  proprietor,  whilst  he  had  the 
estate,  had  aliened  or  incumbered  it,  would  be  necessar}^,  in  order 
to  render  the  public  registry  available  to  the  full  extent  to  which 
it  was  designed  by  law  ;  and  therefore  it  would  be  reasonable  to 
presume  in  each  case  that  such  search  had  been  made,  and  if 
any  such  deed  from  a  proprietor  was  on  record,  that  it  had  been 
discovered,  and  was  known  to  the  subsequent  purchaser." 

575.  When  the  title  of  the  prior  mortgagee  may  be  per- 
fected by  record.  —  The  right  of  the  first  purchaser  or  mortgagee 
to  preserve  his  title  by  recording  his  deed,  continues  after  any 
number  of  subsequent  conveyances  in  the  chain  of  title  derived 
from  the  second  grantee  from  the  original  grantor,  although  the 
deeds  in  this  chain  of  title  have  all  been  duly  recorded,  provided 
that  such  subsequent  purchasers,  one  and  all,  have  bought  either 
with  knowledge  of  the  prior  unrecorded  deed  or  without  paying 
valuable  consideration.  So  long  as  this  state  of  things  continues 
the  prior  title  will  hold,  and  may  be  perfected  by  record.  But  so 
soon  as  any  one  in  the  chain  of  title  under  the  second  conveyance 
purchases  in  good  faith  for  a  valuable  consideration,  and  places 
his  deed  on  record,  the  title  under  the  first  unrecorded  deed  is 
gone  forever. 1 

1  This  point  is  fully  illustrated  in   the  alphabet,  each  subsequent  grantee  having 

caseofFallassy.  Pierce,  30  Wis.  443,  which  knowledge  of  B.'s  prior  right,  and  all  of 

was  several  times  argued  before  tlie  court,  their  conveyances  l)eing  recorded,  yet  then, 

and  was  finally  decided  in  a  well  considered  if  B.  should  record  his  deed  before  the  last 

opinion  by  Chief  Justice  Dixon.     Using  grantee  with   knowledge,  and   Z.  should 

the  same  illustration  given  above,  he  says:  make  conveyance,  the  purchaser  from  Z. 

"If,  for  example,  in  the  case  supposed,  C.  would    be  bound    to  take   notice  of  B.'s 

took  his  deed  with  knowledge  of  the  prior  rights,  and  of  the  relations  existing  be- 

conveyance  to  B.  and  had  then  conveyed  tween  them,  and  all  the  subsequent  pur- 

to  D.,  who  had  like  knowledge,  and   D.  chasers  from  C.  to  Z.  inclusive.     And  in 

should  convey  to  E.  and  so  on,  convey-  the  same  case,  if  Z.  should  sell  to  a  pur- 

ances  should  be  executed  to  the  end  of  the  chaser  in  good  faith  for  value  from  him, 

439 


§  576.]  NOTICE   AS   AFFECTING   PRIORITY. 

This  class  of  cases  very  frequently  present  questions  of  the 
greatest  difficulty  ;  and  the  language  of  Lord  Chancellor  North- 
ington  is  generally  applicable  to  any  one  of  them  :  "  This  is  one 
of  those  cases  which  are  always  very  honorably  labored  by  the 
counsel  at  the  bar,  and  determined  with  great  anxiety  by  the 
court,  as  some  of  the  parties  must  be  shipwrecked  in  the  event."^ 

576,  A  further  illustration  of  the  effect  of  notice  in  respect 
to  an  examination  of  the  records.  —  As  a  general  rule  a  pur- , 
chaser  is  not  bound  to  search  the  records  for  incumbrances  as 
against  a  title  that  does  not  appear  of  record. ^ 

Generally,  therefore,  the  record  of  any  mortgage  prior  to  the 
conveyance  by  which  the  mortgagor  took  his  title  is  no  notice  of 
the  incumbranceto  a  subsequent  purchaser.^  The  whole  object  of 
the  registry  acts  is  to  protect  subsequent  purchasers  and  incum- 
brancers against  previous  conveyances  which  are  not  recorded,  and 
to  deprive  the  holder  of  previous  unregistered  conveyances  of  his 
right  of  priority,  which  he  would  have  at  the  common  law.  The 
title  upon  record  is  the  purchaser's  protection.  The  registry  of  a 
deed  is  notice  only  to  those  who  claim  through  or  under  the 
grantor  by  whom  the  deed  was  executed.  When  one  link  in  the 
chain  of  title  is  wanting,  there  is  no  clue  to  guide  the  purchaser  in 

yet  if  B.   should   get  his  conveyance  re-  laid  down  that  the  record  of  the  prior  deed 

corded  before  that  of  such  purchaser,  liis  after  the  second   is  notice  to  a  purchaser 

title  would  he  preferred,  because  of  such  from  the  vendee  in  the  second  that  there 

first  record.  is  such  a  prior  deed,  but  the  record  of  it 

"Arid  it  is  manifest  that  the  same  result  is  no  notice  that  the  vendee  in  the  second 
would  follow  if  in  the  case  supposed  none  deed,  at  the  time  he  secured  it,  had  notice 
of  the  subsequent  grantees,  from  C.  to  Z.  of  the  first  deed,  and  without  such  notice 
inclusive,  paid  any  valuable  consideration  the  title  of  the  purchaser  from  the  vendee 
for  the  land,  or,  if  in  the  case  of  each  sue-  in  the  second,  but  first  recorded  deed, 
cessive  grantee,  his  title  was  defective  and  would  not  be  affected  by  the  fraud  or 
invalid  as  against  B.,  either  by  reason  of  knowledge  of  his  vendor, 
his  knowledge  of  B.'s  title  or  because  he  The  doctrine  of  the  text  is  also  sup- 
was  a  mere  volunteer,  paying  no  consider-  ported  by  English  v.  Waples,  13  Iowa, 
ation  whatever  for  the  conveyance."  See  57  ;  Sims  v.  Hammond,  33  Iowa,  368. 
White  &  Tudor's  Lead.  Cas.  in  Eq.  4th  ^  See  Stanhope  y.  Earl  Verney,  2  Eden, 
Am.  ed.  vol.  2,  pt.  1,  p.  212,  for  a  dissent  81. 

to  this  line  of  decisions,  because  they  make  -  Cook  v.  Travis,  20  N.  Y.  402  ;  Losey 

it  requisite  to  search  for  conveyances  from  v.  Simpson,  3  Stockt.  (N.  J.)  246. 

two  persons  during  the  same  period.     The  ^  Calder  v.  Chapman,  52  Pa.  St.  359  ; 

authorities  cited  in  support  of  this  view  Wing  v.  McDowell,  Walk.   (Mich.)   175; 

are  the  earlier  cases  in  Massachusetts  and  Farmers'  Loan,  &c.  Co.  v.  Maltby,  8  Paige 

Wisconsin  now  overruled.  (N.  Y.),  361. 

In  Day  v.  Clark,  25  Vt.  402,  the  rule  is 

440 


UNDER   THE   REGISTRY   ACTS.  [§  577. 

his  search  to  the  next  succeeding  hnk  by  which  the  chiim  is  con- 
tinued. When  the  purchaser  has  traced  the  title  down  to  an 
individual,  out  of  whom  the  record  does  not  carry  it,  the  registry 
acts  make  that  title  the  purchaser's  protection.^ 

Yet,  the  circumstances  may  be  such  that  a  purchaser  will  be 
bound  to  search  the  records  for  incumbrances  as  against  a  title 
which  does  not  appear  upon  the  records  ;  as  for  instance  when  he 
has  actual  notice  of  the  existence  of  a  mortgageable  estate  in  one 
prior  to  the  date  of  his  title  to  an  absolute  fee.  One  in  posses- 
sion of  land  under  a  contract  of  sale,  though  the  contract  be  by 
parol,  has  a  mortgageable  interest,  and  a  mortgage  of  it  may  be 
legally  and  properly  recorded,  so  as  to  take  precedence  of  a  sub- 
sequent conveyance  of  the  pro^Derty,  if  the  subsequent  purchaser 
had  actual  notice  of  the  existence  of  a  mortgageable  estate  in  the 
mortgagor  prior  to  his  receiving  an  absolute  deed  of  the  land.^ 

A  recital  in  a  deed  that  the  grantee  had  been  in  possession  of 
the  granted  farm  since  a  given  date,  several  months  prior  to  the 
deed,  under  a  contract  for  the  purchase  of  it,  is  actual  notice  to  one 
claiming  under  the  title  of  such  deed,  that  the  grantee  had  been 
in  possession  before  he  received  a  deed  of  the  land,  and  the  law 
charges  him  with  notice  that  such  grantee  had,  during  such  pos- 
session, a  mortgageable  interest  in  the  land  ;  and  he  is  bound  to 
search  the  records  for  incumbrances  against  the  title  from  the 
time  the  grantee  entered  into  possession  under  his  contract,  and 
he  is  bound  by  a  mortgage  made  by  such  grantee  while  in  pos- 
session under  the  contract  of  sale  and  before  receiving  a  deed.^ 

577.  Notice  of  a  secret  trust.  —  It  is  frequently  the  case  that 
an  estate  which  appears  by  the  record  to  be  absolutely  the  prop- 

1  Per  Chancellor  Williamson,  in  Losey  that  it  is  confirmatory  of  a   deed   dated 

V.  Simpson,  11  N.  J.  Eq.  {3   Stock.)   246  ;  January  first,  under  which  he  has  been  in 

and  see  Cook  v.  Travis,  20  N.  Y.  402 ;  possession  since  that  date,  and  which  deed 

Parkist  v.  Alexander,   1   Johns.    (N.  Y).  has  been  lost,  it  would  not  be  held  that  a 

Ch.  398.  search  back  to  the  date  of  the  confirma- 

-  Crane  v.  Turner,  7  Hun  (N.  Y.),  357.  tory  deed  was  due  diligence  in  a  person 

8  Crane  v.  Turner,  7  Hun  (N.  Y.),  357.  who  had  actual  notice  of  the  recital,  even 

Mr.  Justice  Follett  by  way  of  illustration,  though   accompanied   by   inquiry   of    the 

said:    "If,  January  first,  a  grantee  re-  grantee;  and  if  he  should  take  a  mortgage 

ceives  a  deed  and  enters  into  possession,  and  record  it,  it  would  not  have  precedence 

but  neglects  to  record  the  deed,  or  it  is  de-  over  a  duly  recorded  mortgage  given  be- 

stroyed,  and  subsequently  he   receives  a  tween  the  dates  of  the  first  and  second 

new  deed  bearing  a  later  date  and  reciting  deeds. 

441 


§§  578,  579.]        NOTICE  as  affecting  priority. 

erty  of  the  grantee,  is  in  fact  held  by  him  in  trust  for  another 
person.  In  such  case,  any  one  who  deals  with  liim  in  respect  to 
this  estate,  with  knowledge  of  'the  trust,  takes  it  subject  to  the 
trust.  If  the  conveyance,  though  absolute  in  form,  be  in  fact  a 
mortgage,  a  purchaser,  with  knowledge  of  this  fact,  takes  the 
estate  subject  to  the  mortgage.  "  Though  a  purchaser  may  buy 
in  an  incumbrance,  or  lay  hold  on  any  plank  to  protect  himself, 
yet  he  shall  not  protect  himself  by  the  taking  a  conveyance  from 
a  trustee  after  he  had  notice  of  the  trust,  for  by  taking  a  convey- 
ance with  notice  of  the  trust,  he  himself  becomes  the  trustee, 
and  must  not,  to  get  a  plank  to  save  himself,  be  guilty  of  a 
breach  of  trust."  ^ 

2.  Actual  Notice. 

578.  There  are  three  kinds  of  notice ;  actual,  implied,  and 
constructive.  As  the  doctrine  of  notice  as  affecting  the  priority 
of  incumbrances  arises  from  the  equitable  view  that  it  is  fraud 
in  one,  who  has  notice  of  an  adverse  claim  in  another,  to  at- 
tempt to  acquire  a  title  to  the  prejudice  of  the  interest  of  which 
he  has  been  made  aware,  it  is  obvious  that  the  actual  culpability 
involved  by  the  notice  must  depend  altogether  upon  the  kind  and 
degree  of  notice  received.  Yet,  the  legal  consequences  are  the 
same,  whatever  the  kind  and  degree  of  the  notice  may  be,  pro- 
vided the  notice  is  imputed  at  all. 

579.  Actual  notice,  of  course,  means  direct  personal  knowl- 
edge.2  Whether  it  exists  in  any  particular  case,  and  whether  it 
is  sufficient  to  charge  the  party  whom  it  is  sought  to  affect  by  it, 
is  a  question  of  fact  to  be  considered  and  determined  upon  the 
evidence  in  each  particular  case.     It  is  deemed  effectual  and  suffi- 

1  Saunders  v.  Dehew,  2  Vern.  271.  either  verbal  or  in  writing,  coniing  from 

2  Rogers  v.  Jones,  8  N.  H.  264  ;  Wil-  a  source  which  a  part}'  ought  to  give  heed 
liamson  r.  Brown,  15  N.  Y.  354;  Mayor,  to.  Curtis  v.  Mundy,  3  Met.  (Mass.)  405; 
&c.  of  Baltimore  y.  Williams,  6  Md.  235.  George   v.   Kent,    7    Allen    (Mass.),    16. 

The  statutes  of  Massachusetts  provide  This  provision  Avas  first  adopted  in    the 

that   no  unrecorded  deed  shall  be  valid,  Rev.  Stat,  of  1836,  before  which  time  im- 

save  as  against  the  grantors  and  persons  plied  or  constructive  notice  was  held  to  be 

having  "actual  notice  thereof."     By  act-  sufficient,  but  now  has  no  effect.     Parker 

ual  notice  is  not  meant  necessarily  that  a  v.  Osgood,  3  Allen  (Mass.),  487  ;  and  see 

person  must  actually  have  seen  or  been  Lawrence   v.  Stratton,    6    Cush.    (Mass.) 

told   of  the  deed  by  the  grantor,  but  it  163,  1G6. 
means  any  intelligible  information   of  it, 

442 


ACTUAL   NOTICE.  [§  580. 

cient  when  the  evidence  shows  that  the  matters  relating  to  the 
prior  claim  or  interest  of  another,  constituting  notice  of  it,  are 
brought  distinctly  to  the  knowledge  and  attention  of  the  person 
it  is  sought  to  affect. 1 

Actual  notice  may  be  verbal  or  written  ;  -  it  may  be  intended  or 
accidental ;  ^  it  may  affect  an  infant  or  feine  covert  as  much  as  an 
adult ;  *  a  cestui  que  trust  is  bound  by  notice  to  the  trustee  ;  ^ 
notice  to  one  of  several  partners  is  notice  to  the  partnership  ;  ^ 
and  notice  to  one  of  several  trustees  is  generally  sufficient.'^ 

580.  The  degrees  and  kinds  of  actual  notice  are  of  course 
without  number,  rangins  from  a  formal  written  statement  of  the 
lien,  giving  all  its  details,  to  a  mere  verbal  declaration  of  the  fact 
of  its  existence  ;  it  may  be  one  given  expressly  as  a  notice,  or  it 
may  have  come  in  an  accidental  way.  But  neither  the  manner  of 
the  notice  nor  the  purpose  of  it  is  material.^  The  degree  of  the 
notice,  however,  is  material.  "  Flying  reports  are  many  times 
fables  and  not  truth."  ^  A  mere  rumor  that  some  other  person 
claims  an  interest  in  the  property  will  not  affect  a  person  wit\\ 
notice  of  such  interest.^*^  Generally,  such  notice,  to  be  binding, 
must  proceed  from  some  person  interested  in  the  property .^^  This 
latter  proposition  has,  however,  been  questioned  ;  and  it  is  said 
that  if  the  information  be  derived  from  any  other  source  entitled 
to  credit,  and  it  be  definite,  it  will  be  equally  binding  as  if  it 
came  from  the  party  himself. ^^ 

Notice  of  an  intention  on  the  part  of  the  owner  of  property  to 
execute  a  lien  upon  it  does  not  prevent  the  person  having  such 
notice  from  taking  a  valid  incumbrance  upon  it. 

1  Robinson's  Law  of  Priority,  p.  27.  i^  Jolland  v.   Stainbridge,  3  Ves.  478 ; 

2  North  Brit.  Ins.  Co.  I).  Hal'lett,  7  Jur.  Jaques  v.  Weeks,  7  Watts  (Pa.),  267; 
(N.  S.)  1263.  Wilson   v.  M'Cullough,  11    Harris  (Pa.), 

8  Smith  V.  Smith,  2  Crompt.  &  M.  231.  440. 

*  Fisher  on  Mort.  3d  ed.  p.  .548.  "  Natal  Land  Co.  v.  Good,  2  L.  R.  P. 

6  Wise  V.  Wise,  2  Jones  &  Lat.  403.  C  121  ;  BarnhartiJ.  Greenshiclds,  9  Moore 

6  Travis  r.  Milne,  9  Hare,  141.  P.   C.    18,   36  ;  Rogers   v.    Haskings,    14 

T  Meux  V.  Bell,  1  Hare,  73.  Ga.  166  ;  Lamont  v.  Stimson,  5  Wis.  443; 

8  Smith  V.  Smith,  2  Crompt.  &  M.  231  ;  Van  Duyne  r.  Vreeland,  1  Beas.  (N.  J.) 
North  Brit.  Ins.  Co.  v.  Ilallett,  7  Jur.  N.  142,  155;  Peebles  v.  Reading,  8  S.  &  R. 
S.  1263.  496. 

9  Wildgoose  v.  Wayland,  Gouldsb.  147,  i'^  Mulliken  v.  Graham,  22  P.  F.  Smith 
pi.  67,  per  Lord  Keeper  Egerton;  and  see  (Pa.),  484,  490;  Curtis  v.  Mundy,  3  Met. 
Butler  V.  Steevcns,  26  Me.  484;  Doyle   v.  (Mass.)  407. 

Teas,  4  Scam.  (111.)  202. 

443 


§  581.]  NOTICE   AS   AFFECTING   PRIORITY. 

A  creditor  may  by  his  vigilance  secure  his  demand,  if  possible, 
by  taking  a  mortgage  from  his  debtor,  just  as  he  might  by  an 
attachment,  although  he  knew  that  another  creditor  intended  to 
make  an  attachment  in  the  one  case,  or  to  take  a  mortgage  in  the 
other,  and  had  taken  steps  for  effecting  tliis.^ 

The  burden  of  proof  is  upon  the  person  who  claims  priority, 
and  charges  another  with  notice  of  his  own  incumbrance  to  make 
out  affirmatively  that  the  other  had  such  notice.^ 

Notice  to  supply  the  place  of  registry  must  be  more  than  what 
is  barely  sufficient  to  put  the  party  upon  inquiry.^  To  break  in 
upon  the  registr}'^  acts,  it  must  be  such  as  will,  with  the  attending 
circumstances,  affect  the  party  with  fraud.*  The  notice  must  be 
clear  and  undoubted  ;  ^  and  when  that  is  the  case  it  is  regarded 
as  per  se  evidence  of  fraud  for  one  to  attempt  to  defeat  a  prior 
incumbrance  by  setting  up  a  subsequent  deed.^  It  is  sufficient  if 
it  comes  within  the  rule,  Id  certum  est,  quod  certum  reddi  potest. 
The  facts  disclosed  amount  to  notice  when  they  are  such  as  render 
it  incumhent  on  the  purchaser  or  mortgagee  to  inquii-e,  and  at  the 
same  time  enable  him  to  prosecute  the  inquiry  successfully.'^  If 
in  such  case  he  wilfully  closes  his  eyes  and  remains  ignorant  of 
facts  he  would  ascertain  by  a  reasonable  inquiry,  he  is  affected 
with  notice  of  them  just  as  much  as  he  would  be  had  he  made  the 
inquiry.^ 

581.  Notice  has  effect  if  received  any  time  before  comple- 
tion of  trade.  —  A  subsequent  purchaser  is  bound  by  notice  of 
a  prior  unrecorded  mortgage,  although  not  received  till  after  he 
has  agreed  upon  the  terms  of  the  trade,  if  received  before  he  has 

1  "Warden  v.  Adams,  15  Mass.  233.  182;  Jackson  ?;.  Burgott,   10  Johns.  (N. 

2  Hardy,  Exp.  2    D.  &   C.  393;    Fort     Y.)  457. 

V.  Burch,   6   Barb.  N.  Y.  78 ;    Center  v.  ^  Hine  v.  Dodd,  2  Atk.  275 ;  West  v. 

Planters'    &    Merchants'    Bank,    22  Ala.  Reid,  2  Hare,  249. 

743;    McCormick   v.  Leonard,  38   Iowa,  ^  Dunham  v.   Dey,   15  Johns.  (N.  Y.) 

272 ;  Miles  v.  Blanton,  3  Dana  (Ky.),  525  ;  555. 

Van  Wagenen  v.  Hopper,  8  N.  J.  Eq.  (4  ■?  Spofford    v.   "Weston,    29    Me.    140  ; 

Halst.)  684,  707.  Parker  v.  Kane,  4  "Wis.  1 ;  Nute  v.  Nute, 

3  Jackson  v.  "Van  "Valkenburgh,  8  Cow.  41  N.  H.  60. 

(N.  Y.)  260;    "Williamson   v.  Brown,   15  8  Blaisdell  v.  Stevens,  16  "Vt.  186  ;  Bun- 

N.  Y.  354,  and  cases  cited;  Reed  v.  Gan-  ting  v.  Ricks,  2  Dev.  &  Bat.  (N.  C.)  Ch. 

non,  50  N.  Y.  345;  and  see  "Webster  v.  130  ;  and  see  "White  &  Tudor's  Lead.  Cas. 

Van  Stcenbergh,  46  Barb.  (N.  Y.)  211.  4th  Am.  ed.  vol.  2d,  pt.  1,  pp.  152-155. 

4  Dey  V.  Dunham.  2  Johns.  (N.  Y.)  Ch. 

444 


ACTUAL  NOTICE.  [§  582. 

actually  paid  the  consideration,  or  in  any  way  put  himself  to  dis- 
advantage by  a  partial  completion  of  the  transaction.-'  But  after 
the  sale  is  completed  by  the  payment  of  the  consideration,  no- 
tice of  a  prior  mortgage  is  without  effect. ^ 

Lord  Hardwicke  is  reported  to  have  held  that  a  purchaser 
having  notice  of  a  prior  interest  after  payment  of  the  purchase 
money,  but  before  conveyance,  is  not  entitled  to  protection,  for 
the  reason  that  some  suspicion  arises  from  his  not  taking  the  legal 
estate  at  the  time  when  the  money  is  paid."^  But  the  decision  is 
at  variance  with  all  other  cases  on  this  point ;  and  the  law  at 
the  present  day  upon  the  subject  is  undoubtedly  expressed  in  the 
dictum  of  Lord  Thurlow,  that  "  the  time  when  the  money  was 
advanced  is  that  at  which  the  notice  is  material."  *  And  in  the 
later  saying  of  Lord  Hatherley,  that  "  in  itself  it  is  immaterial 
whether  the  purchaser  knows  or  not  that  another  had  an  equita- 
ble interest  prior  to  his  own,  provided  he  did  not  know  that  fact 
on  paying  his  purchase  money."  ^ 

A  mortgagee  cannot  escape  the  effect  of  a  notice  he  has  re- 
ceived of  a  previous  lien  by  having  forgotten  it  at  the  time  he 
took  the  mortgage.^ 

582.  Liraitation  that  one  with  notice  may  acquire  a  good 
title  from  one  without  notice.  —  The  rule,  that  one  purchasing 
or  taking  a  mortgage  of  property  with  notice  of  some  prior  ad- 
verse claim  to,  or  interest  in,  such  property  takes  subject  to  such 
interest,  is  subject  to  the  limitation  that  if  a  person  with  such 
notice  acquires  a  legal  title  to  the  property  from  one  who  is  with- 
out such  notice,  he  is  entitled  to  the  same  protection  as  his  ven- 
dor, "  as  otherwise  it  would  very  much  clog  the  sale  of  estates."  "^ 
Therefore,  if  a  person  takes  a  mortgage  or  other  conveyance 
with  notice  of  a  prior  incumbrance,  but  takes  it  from  one  who 

1  Beckett  i--.  Cordley,  1  Bro.  C.  C.  353;  ^  Hunt  v.  Clark,  6  Dana  (Ky.),  56. 
English  y.  Waples,  13  Iowa,  57.  ^  Lowther    v.    Carlton,    2    Atk.    242; 

2  Syer  v.  Bundy,  9  La.  Ann.  540.  Brandlyn  v.  Ord,  1  Atk.  571  ;  Harrison  v. 

3  Hardingham  v.  Nicholls,  3  Atk.  304  ;  Forth,  Free.  Ch.  51 ;  Sweet  v.  Southcote,  2 
Wigg  V.  Wigg,  1  Atk.  3S2 ;  and  see  Bro.  Ch.  66 ;  Cook  v.  Travis,  22  Barb. 
Mackreth  v.  Symmons,  15  Vcs.  335,  per  (N.  Y.)  338;  20  N.  Y.  400;  Varick  v. 
Sir  S.  Komiily;  2  Dart  Vend.  &  P.  4th  Briggs,  6  Paige  (N.  Y.),  323;  Bell  v. 
ed.  760  ;  Rayne  v.  Baker,  1  Giff.  241.  Twilight,  18  N.  H.  159  ;  Boynton  v.  Rees, 

*  Beekett  v.  Cordley,  supra.  8  Pick.  (Mass.)  329. 

5  Pilcher  I'.   Rawlins,   L.  R.   7    Chan. 
App.  259.  445 


§  583.]  NOTICE   AS   AFFECTING   PRIORITY. 

purchased  without  such  notice,  and  therefore  acquired  a  title  good 
against  such  incumbrance,  such  subsequent  mortgagee  with  no- 
tice may  shelter  himself  under  the  protection  which  the  law 
affords  his  grantor ;  he  takes  the  latter's  rights.^ 

One  who  takes  a  second  mortgage,  with  notice  of  a  prior  un- 
recorded mortgage,  is  not  the  less  a  purchaser  with  notice,  and 
subject  to  such  mortgage,  because  he  is  at  the  same  time  informed 
that  the  debt  secured  by  such  mortgage  is  usurious.^ 

A  judgment  creditor  who  has  notice  of  an  unrecorded  mort- 
gage holds  his  lien  subject  to  the  mortgage.^ 

It  is  no  defence  to  one  who  takes  a  deed  of  land  with  actual 
knowledge  on  his  part  of  a  previous  mortgage  upon  it,  that  the 
parties  to  the  mortgage  agreed  that  it  should  not  be  recorded, 
and  the  mortgagee  received  a  written  guaranty  "  to  hold  him 
harmless  from  any  loss  by  reason  of  not  recording  the  deeds."  * 

583.  Limitation  that  one  without  notice  may  acquire  a 
good  title  from  one  who  has  notice.  —  Another  limitation  to 
the  rule  of  notice  arises  when  a  person  in  good  faith  acquires  a, 
legal  title  from  one  who  has  notice  of  a  prior  equitable  right.^ 
The  last  purchaser's  "  own  hona  fides  is  a  good  defence,  and  the 
mala  fides  of  his  vendor  ought  not  to  invalidate  it."  Therefore, 
although  one  who  has  notice  of  a  prior  unrecorded  mortgage  can- 
not himself  purchase  the  land,  or  take  a  mortgage  upon  it,  with- 
out its  being  subject  to  such  unrecorded  mortgage,  yet  if  he  sell 
the  land  or  the  mortgage  to  a  purchaser  in  good  faith  before  the 
record  of  the  prior  mortgage,  the  purchaser  from  him  will  acquire 
a  title  superior  to  the  unrecorded  mortgage ;  but  should  such 
purchaser  omit  to  record  his  deed  or  assignment  until  the  mort- 
gage is  recorded,  he  would  stand  in  no  better  position  tban  his 
assignor.^ 

In  like  manner  an  attaching  creditor  without  notice  of  an  un- 

1  Harrington  v.  Allen,  48  Miss.  492 ;  ^  Mertins  v.  JoUiffe,  Amb.  313 ;  and 
Chance  v.  McWhorter,  26  Ga.  315.  see,  also,  Att'y  Gen.  v.  Wilkins,  17  Beav. 

2  Beverley  v.  Brooke,  2  Leigh  (Va.),  293;  Harrison  v.  Forth,  Free.  Ch.  51; 
425.  M'Qucen  v.  Farquhar,  11  Ves.  467,  478. 

3  See  §  461 ;  Williams  v.  Tatnall,  29  ^  Fort  v.  Burch,  5  Denio  (N.  Y.),  187; 
111.  553  ;  Thomas  v.  Vanlieu,  28  Cal.  Jackson  v.  Van  Valkenburgh,  8  Cow. 
616 ;  but  see  Smith  v.  Jordan,  25  Ga.  (N.  Y.)  260.  See  Stroud  v.  Lockhart,  4 
687.  Dall.  153;  Harrington  v.  Alien,  48  Miss. 

*  Lord  V.  Doyle,  1  Cliff.  453.  492. 

446 


IMPLIED   NOTICE.  [§  584. 

recorded  deed  will  hold  the  estate,  although  the  debtor  had  notice 
of  it.i 

3.    Implied  Notice. 

584,  Notice  to  principal  implied  from  notice  to  agent.  — 
When  an  agent  acquires  a  knowledge  of  any  matters  or  instru- 
ments affecting  the  title  of  any  lands,  about  the  purchase  or 
mortgage  of  which  he  is  employed,  and  this  knowledge  is  such 
that  it  is  his  duty  to  communicate  it  to  his  principal,  the  law  im- 
putes this  knowledge  to  the  principal ;  or,  in  other  words,  notice 
to  the  principal  of  such  matters  or  instruments  is  implied.-  Such 
notice  is  sometimes  called  constructive  ;  but  it  is  really  implied 
from  the  identity  of  principal  and  agent,  and  not  iinpvited  by 
virtue  of  a  construction  placed  upon  their  conduct  or  relation; 

Notice  to  an  agent,  to  bind  the  principal,  must  be  brought  home 
to  the  agent  while  engaged  in  the  business  and  negotiation  of  the 
principal,  and  when  it  would  be  a  breach  of  trust  in  the  former 
not  to  communicate  the  knowledge  to  the  latter.^  The  knowledge 
or  notice  of  facts  acquired  by  an  attorney,  while  engaged  in  the 
business  of  his  client,  is  knowledge  or  notice  of  them  by  the  client 
himself.* 

Where  a  solicitor  induced  a  client  to  take  a  mortgage  upon  the 
lands  of  a  third  person,  situate  in  the  county  of  Middlesex,  in 
England,  and  soon  afterwards  induced  a  second  client  to  advance 
money  on  mortgage  of  the  same  lands,  without  informing  him  of 
the  existence  of  the  first  mortgage,  and  the  second  mortgage  was 
registered  before  the  first  mortgage  was  registered,  it  was  held 
that  the  holder  of  the  second  mortgage  must  be  taken  to  have  had, 
through  the  solicitor,  notice  of  the  first  mortgage,  and  could  not 
by  the  prior  registration  obtain  priority.^  Lord  Chancellor  Hath- 
erly  said  :  "  It  has  been  held  over  and  over  again  that  notice  to  a 
solicitor  of  a  transaction,  and  about  a  matter  as  to  which  it  is  part 
of  his  duty  to  inform  himself,  is  actual  notice  to  the  client.  Man- 
kind would  not  be  safe  if  it  were  held  that,  under  such  circum- 

1  Coffin  V.  Ray,  1  Met.  (Mass.)  212.  16  How.  (N.  Y.)  Pr.  119  ;  Fry  v.  Shehee, 

2  Fuller  V.   Bennett,  2  Hare,  394,  and     55  Ga.  208. 

cases    cited;    AVilliamson    v.   Brown,    15  *  Jones  t'.  Bamford,  21  Iowa,  217  ;  Jack- 

N.  Y.  359;    Hovey  v.  Blanchard,   13   N.  son  v.  Van  Valkenbur<;h,  8  Cow.  (N.  Y.) 

H.  145 ;  Bank  of  U.  S.  v.  Uavis,  2  Hill  260. 

(N.  Y.),451.  °  Holland   v.   Hart,  L.  R.  6  Ch.  App. 

3  Pringle  i'.  Dunn,  37  Wis.  449  ;  May  678. 
V,  Borcl,  12  Cal.  91  ;  Haywood  v.  Shaw, 

447 


§§  585,  586.]        NOTICE  as  affecting  priority. 

stances,  a  man  has  not  notice  of  that  which  his  agent  has  actual 
notice  of.  The  purchaser  of  an  estate  has,  in  ordinary  cases,  no 
personal  knowledge  of  the  title,  but  employ's  a  solicitor,  and  can 
never  be  allowed  to  say  that  he  knew  nothing  of  some  prior  in- 
cumbrance, because  he  was  not  told  of  it  by  his  solicitor." 

585.  Upon  what  principle  this  implied  notice  rests.  —  "  It 
is  a  moot  point,"  says  Vice-Chancellor  Kindersley,^  "  upon  what 
principle  this  doctrine  rests.  It  has  been  held  by  some  that  it 
rests  on  this :  that  the  probability  is  so  strong  that  the  solicitor 
would  tell  his  client  what  he  knows  himself,  that  it  amounts  to  an 
irresistible  presumption  that  he  did  tell  hira  ;  and  so  you  must 
presume  actual  notice  on  the  part  of  the  client.  I  confess  my 
own  impression  is,  that  the  principle  on  which  the  doctrine  rests 
is  this :  that  my  solicitor  is  alter  ego  —  he  is  myself ;  I  stand  in 
precisely  the  same  position  as  he  does  in  the  transaction,  and, 
therefore,  his  knowledge  is  my  knowledge  ;  and  it  would  be  a 
monstrous  injustice,  that  I  should  have  the  advantage  of  what 
he  knows  without  the  disadvantage.  But  whatever  be  the  prin- 
ciple upon  which  the  doctrine  rests,  the  doctrine  itself  is  unques- 
tionable." 

"  In  such  a  case,"  said  Lord  Chancellor  Brougham,^  "  it  would 
be  most  iniquitous  and  most  dangerous,  and  give  shelter  and  en- 
couragement to  all  kinds  of  fraud,  were  the  law  not  to  consider 
the  knowledge  of  one  as  common  to  both,  whether  it  be  so  in  fact 
or  not." 

586.  The  notice  must  be  in  the  same  transaction. — Notice 
to  the  agent  binds  the  principal  only  when  it  is  given  to  or  ac- 
quired by  him  in  the  transaction  in  which  the  principal  employs 
him.^     The  reason  for  this  limitation  has  been  stated  to  be,  that 

1  Boursot  V.  Savage,  L.  R.  2.  Eq.  142.  "It  is   settled,"  says  Lord  Hardwicke, 

2  Kennedy  v.  Green,  3  M.  &  K.  699,  719.  in  Warrick  v.  Warrick,  supra,  "  that  notice 

3  Warrick  v.  Warrick,  3  Atk.  294,  per  to  the  agent  or  counsel,  who  was  employed 
Lord  Hardwicke ;  Fitzgerald  v.  Faucon-  in  the  thing  by  another  person,  or  in  an- 
berg,  9  Fitz  G.  207  ;  Fuller  v.  Bennett,  2  other  business,  and  at  another  time,  is  no 
Hare,  404 ;  New  York  Ins.  Co.  v.  National  notice  to  his  client  who  employs  him 
Ins.  Co.  20  Barb.  (N.  Y.)  468;  and  see  afterwards.  It  would  be  very  mischievous 
White  &  Tudor's  Lead.  Cas.  in  Eq.  4th  if  it  was  so ;  for  the  man  of  most  practice 
Am.  ed.  vol.  2d,pt.  l,pp.  170,  173,  and  see  and  greatest  eminence  would  then  be  the 
Rolland  v.  Hart,  L.  R.  6  Ch.  App.  678.  most  dangerous  to  employ." 

448 


IMPLIED    NOTICE.  [§  587. 

an  agent  cannot  stand  in  the  place  of  the  principal  until  the  rela- 
tion is  constituted  ;  and  that  as  to  all  the  information  which  he 
has  previously  acquired,  the  principal  is  a  mere  stranger.^  An- 
other explanation  commonly  made  of  the  rule  is  that  the  agent 
may  have  forgotten  the  former  transaction.  Under  this  latter 
view  of  the  doctrine,  the  criticism  of  Lord  Eldon  ^  might  well  be 
regarded  as  shaking  it ;  but  it  is  suggested  in  later  cases  that  it 
was  not  the  purpose  of  his  dictum  to  question  the  general  doc- 
trine itself.  At  any  rate  this  has  been  insisted  upon  ever  since 
his  time,  and  may  be  regarded  as  settled.'^ 

When  the  agent  or  attorney  is  employed  by  a  person  in  several 
mortgage  transactions,  and  he  acts  for  the  mortgagees  also,  in  all 
of  them,  although  the  transactions  are  distinct,  the  later  mort- 
gagees are  said  to  be  affected  with  notice  of  the  earlier  mortgages  ; 
on  the  ground  that  the  transactions  follow  each  other  so  closely 
that  they  amount  to  a  continuous  dealing  with  the  same  title.* 
This  exception  would  remain  good  only  when  the  mortgagor  was 
the  same  in  all  the  transactions  and  the  same  attorney  is  employed 
in  all. 

587.  The  notice  must  be  of  some  matter  material  to  the 
transaction ;  of  some  thing  which  it  is  the  duty  of  the  agent  to 
make  known  to  the  principal.^  If  the  agent  acts  merely  in  a 
ministerial  capacity,  as  for  instance  in  obtaining  the  execution  of 
a  deed,  the  principal  is  not  affected  with  the  agent's  knowledge.^ 
In  like  manner,  a  mortgagor  to  whom  a  mortgage  is  intrusted 
for  record  is  not  such  an  agent  of  the  mortgagee,  that  notice  to 
him  of  an  incumbrance,    or  his  knowledge  of  it,  is  constructive 

1  Mountford  v.  Scott,  3  Madd.  40;  and  a  court  of  equity  to  have  forgotten  it  in 
see  Fuller  v.  Bennett,  2  Hare,  394,  per  Sir  the  evening."  And  see  Ilargreaves  v. 
J.  Wi;:ram.  Rothwell,  I  Keen,  154  ;  Brotherton  v.  Halt, 

2  When  the  case  of  Mountford  v.  Scott  2  Vern.  574. 

was  on  appeal  before  Lord  Eldon,  L.  C.  ^  F„iier  v.  Bennett,  supra. 

(T.  &  R.  274)  he  remarked  that  "  it  might  ^  Brotherton  v.  Hatt,  2  Vern.  574  ;  Har- 

fail  to  be  considered,  whether  one  trans-  greaves  v.  Rothwell,  1  Keen,  154 ;  Winter 

action  might  not  follow  so  close  upon  the  v.  Lord  Anson,  1  S.  &  St.  434;  3  Russ. 

other  as  to  render  it  impossible  to   give  493  ;  and   see   Distilled   Spirits,  U  Wall, 

a  man  credit  for  having  forgotten  it.     I  356. 

should  be  unwilling  to  go  so  far  as  to  say,  ^  Wyllie  v.  Pollen,  32  L.  J.  (N.  S.)  Ch. 

that  if  an  attorney  has  notice  of  a  trans-  783. 

action  in  the  morning,  he  shall  be  held  in  «  Wyllie  v.  Pollen,  supra. 

VOL.  I.                                   29  -i-lO 


§§  588,  589.]        NOTICE  as  affecting  priority. 

notice  to  the  mortgagee.^  As  pointed  out  by  Lord  Westbury,^  a 
solicitor  whose  notice  affects  his  client  must  be  a  solicitor  "  for 
the  confidential  purpose  of  advising,"  otherwise  there  is  no  duty 
on  his  part  to  communicate  the  knowledge  to  the  client,  and  the 
doctrine  of  implied  notice  has  no  application. 

Notice  of  the  existence  of  an  unrecorded  mortgage  upon  the 
property  to  an  officer  employed  to  make  an  attachment  is  notice 
to  the  plaintiff,  and  is  equivalent  to  a  record  in  protecting  it 
against  the  attachment.^  But  such  knowledge  on  the  part  of  an 
attorney  who  makes  the  writ,  but  has  no  agency  in  procuring  the 
attachment,  has  been  held  not  to  affect  the  plaintiff.* 

588.  When  the  same  agent  or  attorney  is  employed  by  both 
parties  in  the  same  transaction,  his  knowledge  is  then  the  knowl- 
edge of  both  the  vendor  and  vendee,  of  both  the  mortgagor  and 
mortgagee.^  In  such  case,  moreover,  the  rule  that  the  agent's 
notice  must  be  in  the  same  transaction  is  less  strictly  adhered 
to.^  Thus,  where  a  person  made  two  successive  mortgages  of 
the  same  property,  and  then  gave  a  further  charge  to  the  first 
mortgagee,  and  the  same  solicitor  was  employed  in  all  three  trans- 
actions, it  was  held  that  the  first  mortgagee  had  implied  notice 
of  the  second  mortgagee's  incumbrance,  and  that  the  latter  was 
entitled  to  priority  over  the  further  charge  to  the  first  mortgagee.'^ 

589.  Exception  when  the  agent  is  a  party.  —  The  rule,  that 
the  knowledge  of  the  attorney  is  the  knowledge  of  the  client, 
has  no  application  when  the  attorney  himself  is  the  borrower. 
Therefore,  where  one  was  attorney  for  two  persons,  and  executed 
to  one  of  them  a  mortgage,  which  was  not  recorded,  and  after- 
wards executed  another  mortgage  of  the  same  premises  to  the 
other,  and  this  mortgage  was  recorded,  it  was  held  that  the  pri- 
ority of  this  mortgage  was  not  affected  by  the  attorney's  knowl- 
edge  of  the   mortgage   first  executed.^     Whenever   the  agent   is 

1  Anketel  v.  Converse,  17  Ohio  St.  11  ;  ^  Fuller    v.    Bennett,    2    Hare,    403  ; 

Hoppock  V.  Johnson,  14  Wis.  303.  Brotherton  v.  Hatt,  2  Vern.  574. 

-  In  Wyllie  v.  Pollen,  supra.  ''  Hargreaves  v.  Rothwell,  1  Keen,  1.54. 

"  Tucker  v.  Tiiton,  55  N.  H.  223.  »  Hope  F.  Ins.  Co.  v.  Cambrelling,  I 

*  Tucker  v.  Tiiton,  supra.  Hun  (N.  Y.),  493.     And  see  Rolland  v. 

s  Losey   v.    Simpson,    11  N.  J.  Eq.  (3  Hart,  L.  R.  6  Ch.  App.  678,  683,  per  Lord 

Stock.)  246.     See  Astor  v.  Wells,  4  Wheat.  Hatherley  ;  Kennedy  v.  Green,  3  Mylne  & 

466.  K.  699;  McCormick  v.  Wheeler,  36  111. 
450 


CONSTRUCTIVE   NOTICE.  [§§  f)QO,  591. 

"  the  contriver,  the  actor,  and  the  gainer  of  the  transaction," 
the  reason  for  charging  the  principal  with  notice  of  the  facts  no 
longer  exists.^ 

In  like  manner,  when  the  agent  is  gnilty  of  any  fraud,  for  the 
carrying  out  of  which  it  is  necessary  that  he  should  conceal  it  from 
his  principal,  notice  of  it  cannot  be  imputed  to  the  latter.^  "  It 
must  be  made  out  that  distinct  fraud  was  intended  in  the  very 
transaction,  so  as  to  make  it  necessary  for  the  solicitor  to  conceal 
the  facts  from  his  client,  in  order  to  defraud  him."^  The  fraud 
must  exist  independently  of  the  question  whether  the  act  was 
communicated  to  the  principal  or  not.^ 

590.  Director  of  a  corporation.  —  A  corporation  taking  a 
mortgage  of  land  is  not  chargeable  with  constructive  notice  of  a 
prior  conveyance  of  it  by  the  mortgagor,  because  the  latter  was,  at 
the  date  of  the  deed  and  of  the  mortgage,  a  director  of  the  com- 
pany, for  in  such  a  transaction  the  mortgagor  deals  with  the  com- 
pany as  a  third  party  on  his  own  behalf,  acting  for  himself  with 
and  against  the  company,  and  not  for  it.^ 

4.    Constructive  Notice. 

591.  In  general.  —  Constructive  notice  is  that  which  is  im- 
puted to  a  person  of  matters  which  he  necessarily  either  knows 
or  ought  to  know,  or  which,  by  the  exercise  of  ordinary  diligence, 
he  might  know.     It  cannot  be  controverted.^     The  most  familiar 

114  ;   Winchester  v.  Susquehanna  K.  Co.  structive  notice  of  all  the  facts  with  which 

4  Md.  231.  he  was  personally  acquainted,  as  to  the 

1  Kennedy  v.  Green,  supra.  title  to  lands  in  which  tiiey  had  any  inter- 

2  Kennedy  i;.  Green,  supra;  and  see  Re  est,  in  any  case,  it  could  not  be  so  when 
European  Bank,  L.  R.  5  Ch.  App.  358 ;  he  did  not  become  concerned  as  their  es- 
Fulton  Bank  v.  N.  Y.  &c.  Canal  Co.  4  pccial  af,fent,  or  transact  business  in  their 
Paige  (N.  Y.),  127.  behalf.    Most  clearly  it  cannot  be  the  case 

3  Rolland  v.  Hart,  L.  R.  6  Ch.  A])j).  682.     where  the  facts  concerned  his  private  af- 
*  Atterbury  v.  Wallis,  8  I)e  G.,  M.  &  G.    fairs,  and  the  transaction  was  one  in  which 

466;  and  see  Sharpe  v.  Foy,  L.  R.  4  Ch.  he   was    dealing  with  the  company  as  a 

App.  35  ;  Hewitt  v.   Looseniore,  9   Hare,  third  party  on  his  own  behalf,  and  acting 

455.  for  himself  with  and  against  them." 

s  La   Farge   Fire   Ins.  Co.  v.   Bell,  22  s  piumb  i'.  Fluitt,  2  Anst.  432,  438,  per 

Barb.  (N.    Y.)  54,  61.     "  If  his  position  Eyre,  C.  B.  ;  and  see  Kennedy  r.  Green,  3 

as  a  director,"  says  Mr.  Justice  Eniott,  My.  &  K.  719;   Hewitt   v.  Loosemore,  9 

"could   make   him    the  agent,  or  rather  Hare,  449;    Griffith    v.  Griffith,    I    Hoff. 

identify  him  entirely  with  the  plaintiff's  in  (N.  Y.)  153 ;  Weilder  v.  Farmers'  Bank, 

such   sort   as   to   charge   them   with  con-  11  S.  &  R.  (Pa.)  134. 

451 


§§  592,  593.]        NOTICE  as  affecting  priority. 

instance  of  constructive  notice  is  that  which  under  the  registry 
laws  is  afforded  by  the  record  of  a  deed.  Every  subsequent  in- 
quirer is  bound  to  know  the  existence  and  contents  of  such  deed. 
But  there  are  various  other  kinds  of  constructive  notice,  and  a 
purchaser  or  mortgagee  is  as  much  bound  by  the  knowledge  thus 
imputed  to  him  of  matters  and  instruments  affecting  the  title  to 
property,  as  he  would  be  if  he  were  informed  of  them  by  a  deed 
properly  recorded.  Whether  the  person  charged  with  such  notice 
actually  had  knowledge  of  the  facts  affecting  the  property  in  ques- 
tion, or  might  have  learned  them  by  inquiry,  or  whether  he  stu- 
diously abstained  from  inquiry  for  the  ver}^  purpose  of  avoiding 
notice,  he  is  alike  presumed  to  have  had  notice.^ 

592.  Constructive  notice  is  imputed  either  upon  the  ground 
of  fraud  or  of  negligence.  —  It  does  not  exist  without  one  or  the 
other.  "If  there  is  not  actual  notice  that  the  property  is  in  some 
way  affected,"  says  Vice-Chancellor  Wigram,^  "  and  no  fraudu- 
lent turning  away  from  a  knowledge  of  facts  which  the  res  gestce 
would  suggest  to  a  prudent  mind  ;  if  mere  want  of  caution,  as 
distinguished  from  fraudulent  and  wilful  blindness,  is  all  that  can 
be  imputed  to  a  purchaser,  there  the  doctrine  of  constructive 
notice  will  not  apply ;  there  the  purchaser  will  in  equity  be  con- 
sidered, as  in  fact  he  is,  a  bond  fide  purchaser  without  notice." 
In  another  case,  Vice-Chancellor  Turner  said:^  "When  this 
court  is  called  upon  to  postpone  a  legal  mortgage,  its  powers  are 
invoked  to  take  away  a  legal  right,  and  I  see  no  ground  which 
can  justify  it  in  doing  so,  except  fraud,  or  gross  and  wilful  negli- 
gence, which  in  the  eye  of  this  court  amounts  to  fraud." 

593.  Notice  of  the  existence  of  the  lien  without  the  partic- 
ulars of  it  is  sufficient. —  One  who  has  knowledge  of  a  prior 
unrecorded  mortgage  upon  some  portion  of  the  premises  of  which 
he  is  about  to  purchase  a  part  is  bound  by  such  knowledge  to  as- 
certain the  extent  of  that  mortgage,  and  whether  it  covers  the 
portion  of  the  property  he  is  about  to  acquire  an  interest  in,  and 

1  Whitbread  v.  Jordan,  1  Y.  &  C.  Exch.     see  cases  collected   in  White  &  Tudor's 
328;  Jones  v.  Smith,  1  Hare,  55 ;  Blsco  v.     Lead.  Cas.  4th  Am.  ed.  vol.  2,  p.  121. 
Earl  of  Banbury,  1  Ch.  Ca.  291 ;  Ware  v.         2  Jones  v.  Smith,  1  Hare,  55;  affirmed 
Lord  Egmont,  4  De  G.  M.  &  G.  473 ;  and    on  Appeal,  1  Ph.  244. 

8  Hewitt  V.  Loosemore,  9  Hare,  458. 

452 


CONSTRUCTIVE   NOTICE.  [§§  594,  595. 

he  will  be  postponed  to  such  prior  mortgage,  even  if  this  proves 
to  be  an  incumbrance  upon  the  whole  property.^  Having  notice 
of  its  existence  he  is  chargeable  with  notice  of  all  its  contents.^ 

One  having  notice  that  an  estate  is  incumbered  is  not  justified 
in  assuming  that  the  incumbrance  is  one  already  known  to  him  ; 
he  is  bound  to  inquire  into  the  nature  and  extent  of  the  charge 
referred  to.^  A  notice  of  a  lease  is  notice  of  all  the  covenants 
and  provisions  contained  in  it.* 

594.  Notice  from  recitals  in  deeds.  —  When  a  person  claims 
under  a  deed  which  by  its  recitals  leads  him  to  other  facts  affect- 
ing the  title  to  the  property,  he  is  presumed  to  know  such  facts  ; 
for  it  would  be  gross  negligence  in  him  not  to  make  inquiry  as  to 
the  facts  he  is  thus  put  in  the  way  of  ascertaining.^  A  recital  or 
description  in  a  deed,  to  have  this  effect,  must  be  in  the  course  of 
the  title  under  which  the  purchaser  claims.^  It  must  be  suffi- 
ciently clear  to  put  the  purchaser  upon  inquiry,  and  to  lead  him 
to  the  requisite  information.  If  the  recital  does  not  explain  itself, 
it  must  refer  to  some  deed  or  fact  which  will  explain  it,  to  make 
it  constructive  notice.^ 

A  description  of  a  portion  of  the  land  described  in  a  deed,  as 
"  land,  the  title  to  which  is  in  A.,  given  as  collateral  security  to 
pay  certain  notes,"  is  sufficient  notice  to  the  purchaser  of  an  un- 
recorded mortgage  to  A.  to  preserve  the  priority  of  the  mort- 
gage.8 

595.  Recital  that  premises  are  subject  to  a  mortgage.  — 
One  who  purchases  land  by  a  deed,  which  expressly  recites  that 
the  premises  are  subject  to  a  mortgage,  has  notice  of  the  mort- 

1  White  &  Tudor's  Lead.  Cas.  in  Eq.  6  Boggs  v.  Varner,  6  W.  &  S.  (Pa.) 
4th  Am.  ed.  vol.  2,  pt.  1,  190  ;   Wiilink  v.     469. 

Morris  Canal  &  Banking  Co.  4  N.  J.  Eq.  ''  White  v.  Carpenter,  2  Paige  (N.  Y.), 

(3  Green)  377;  and  see  Hall  v.  Smith,  14  217.     In  Sanborn  v.  Robinson,  54  N.  H. 

Ves.  425;  Guion  v.  Knapp,  6   Paige  (N.  239,  at  the  close  of  the  description  in  a 

y.)^  35.  mortgage,  the  following  words  were  in- 

2  George  v.  Kent,  7  Allen  (Mass.),  16  ;  closed  in  parenthesis:  — 

Pike  V.  Goodwin,  12  lb.  472,  474  ;  Barr  v.  /     Of  six  hundred  dollars                said\ 

Kinard,  4  Strobh.  (S.  C.)  73.  \ premises  are  subject  to  a  former            / 

8  Jones  V.  Williams,  24  Beav.  47.  It  was  held  that  this  was  notice  of  a 

*  Taylor  v.  Stibbert,  2  Ves.  Jun.  437.  prior  mortgage  of  that  amount. 

6  Bacon  v.  Bacon,  Tothill,  133;  Moore  *  Dunham  v.   Dey,  15  Johns.   (N.  Y.) 

V.  Bennett,  2  Ch.  Ca.  246.  556. 

453 


§  595.]  NOTICE   AS    AFFECTING    PRIORITY. 

gage  from  the  recital,  and  cannot  claim  against  it,  although  it  be 
not  recorded.!  In  like  manner,  and  for  stronger  reasons,  one 
who  has  purchased  land  subject  to  a  mortgage,  which  he  agrees  to 
pay,  takes  a  title  subject  to  the  mortgage,  although  it  be  not  re- 
corded, or  be  recorded  in  such  a  way  that  it  is  not  notice.^ 

In  Ohio,  where  the  statute  is  such  that  a  mortgage  takes  effect 
only  from  its  delivery  for  record,  and  its  priority  is  not  affected  by 
notice  of  a  prior  unrecorded  mortgage,  of  course  the  mere  mention 
of  a  prior  mortgage  in  the  deed,  as  for  instance  excepting  it  from 
the  covenants  of  warrant}',^  does  not  affect  the  priority  given  by 
the  record  ;  yet,  if  the  mortgage  be  expressly  made  subject  to  an- 
other, priority  of  record  will  avail  nothing.'^  Moreover,  one  tak- 
ing a  mortgage  made  expressly  subject  to  a  prior  mortgage  can- 
not avoid  it  and  acquire  a  larger  lien  than  contracted  for,  although 
that  mortgage  be  invalid  as  against  the  mortgagor.^  When  a 
mortgage  is  expressly  excepted  from  a  covenant  of  warranty  in  a 
deed  this  exception  charges  the  purchaser  with  notice  of  the  mort- 
gage, although  the  mortgage  be  not  recorded.*^ 

It  is  a  general  rule,  as  elsewhere  shown,  that  when  the  mort- 
gaged premises  have  been  sold  in  parcels  to  different  persons  at 
different  times,  in  the  absence  of  any  intervening  equities,  the 
several  parcels  are  subject  to  the  mortgage,  and  are  to  be  resorted 
to  in  the  inverse  order  of  alienation.'' 

When,  however,  the  first  purchaser  expressly  takes  subject  to 
the  mortgage,  he  has,  of  course,  no  equity  as  against  the  mortgagor 
that  the  portion  still  held  by  the  latter  shall  be  first  applied  to 
the  payment  of  the  incumbrance  ;  and  having  no  equity  against 
him,  he  has  none  against  his  grantee.  By  taking  such  a  deed  he 
consents  that  the  land  shall  remain  subject  to  its  pro  rata  share  of 
the  debt.^ 

A  purchaser  having  actual  notice  of  a  mortgage  is  affected  not 
only  with  the  incumbrance  of  such  mortgage,  but  with  any  other 
incumbrances  which  are  referred  to  in  that  mortgage,  or  in  other 

1  Garrett  v.  Puckett,  15  Ind.  485  ;  ^  Hardin  v.  Hyde,  40  Barb.  (N.  Y.) 
George  v.  Kent,  7  Allen  (Mass.),  16;  435;  Freeman  v.  Auld,  44  N.  Y.  50,  re- 
Howard  V.  Cliase,  104  Mass.  249.  versinor  S.  C.  44  Barb.  14 ;  37  Barb.  587. 

'■^  Boss  V.  Worthington,  11  Minn.  438.  ^  Morrison  v.  Morrison,  38  Iowa,  73. 

8  Bercaw  v.  Cockerill,  20  Ohio  St.  163.  "i  Iglehart  v.  Crane,  42   III.  261;    Mc- 

*  Coe  V.  Col.,  Piqua  &  Ind.  R.  Co.  10  Kinney  v.  Miller,  19  Mich.  142. 

Ohio  St.  372,  406.  8  Briscoe  v.  Power,  47  111.  447. 

454 


CONSTRUCTIVE   NOTICE.  [§  596. 

deeds  to  which  the  deeds  first  referred  to  may  in  turn  refer.^ 
Having  notice  of  the  mortgage  the  purchaser  is  bound  to  know 
the  contents  of  it,  and  that  would  lead  him  to  other  deeds,  in 
which,  pursued  from  one  to  another,  the  whole  case  must  have 
been  discovered  to  him.^  Though  the  contents  of  a  deed  be  stated 
to  a  purchaser,  and  he  relies  upon  such  statement,  and  the  state- 
ment be  erroneous,  he  is  bound  by  its  real  contents  ;3  and  in  like 
manner,  if  he  has  knowledge  of  an  unrecorded  mortgage,  and  rests 
upon  the  vendor's  assurance  that  the  debt  secured  by  it  has  been 
satisfied,  he  does  so  at  his  peril.* 

596.  What  is  sufficient  notice  of  an  incumbrance  to  put 
mortgagee  upon  inquiry.  —  The  fact  that  a  mortgage,  duly 
recorded,  names  a  sum  of  $500  in  addition  to  a  note  secured,  is 
sufficient  to  put  a  subsequent  purchaser  upon  inquiry.  A  party 
wilfully  closing  his  eyes  against  the  lights  to  which  his  attention 
has  been  directed,  and  which,  if  followed,  would  lead  to  a  knowl- 
edge of  all  the  facts,  is  chargeable  with  notice  of  every  fact  that 
he  could  have  obtained  by  the  exercise  of  reasonable  diligence.^ 

In  like  manner,  where  a  mortgage  secured  several  notes,  but  in 
the  record  the  description  of  one  of  them  was  omitted,  but  the 
aggregate  amount  of  the  notes  was  given  correctly,  it  was  held 
that  the  mortgage  was  notice  to  a  purchaser  for  the  full  amount 
of  the  mortgage  notes.^  When  a  deed  was  made  subject  to  "  two 
mortgages  for  $2,000,"  with  warranty  against  all  claims,  "  except 
said  mortgages,"  —  and  there  were  two  prior  mortgages,  one  for 
$1,500,  which  was  recorded,  and  of  which  the  purchaser  had  actual 
knowledge,  and  one  of  $2,000,  which  was  not  recorded,  and  of 
which  he  had  no  notice  except  such  as  was  given  by  the  deed,  it 
was  held  that  the  recitals  in  the  deed  w^ere  sufficient  to  put  him 
upon  inquiry  and  to  charge  him  with  actual  knowledge  of  the  un- 
recorded mortgage.'^ 

1  Bisco  I'.  Ear]  of  Banbury,  1  Ch.  Ca.  »  Jones  v.  Smith,  1  Hare,  43 ;  on  appeal 
287 ;  Coppin  v.  Fernyhough,  2  Bro.  C.  C.  affirmed,  1  Ph.  244,  and  cases  cited.  But 
291;  Hope  v.  Liddell,  21  Beav.  183;  see  Drysdale  r.  Mace,  2  Sm.  &  G.  22.5 ;  5 
Howard  Ins.  Co.  v.  Halsey,  8  N.  Y.  271  ;  De  G.,  M.  &  G.  103. 

Green  v.  Slayter,  4  Johns.  "(N.  Y.)  Ch.  38.  *  Price  v.  McDonald,  1  Md.  403;  Hud- 
See  Cambridge  Valley  Bank   v.   Delano,  son  v.  Warner,  2  Harris  &  G.  (Md.)  41.5. 
48  N.  Y.  327.                '  '^  Babcock  v.  Lisk,  .57  111.  327. 

2  Bisco  V.  Earl  of  Banbury,  supra,  per  "  Dargin  v.  Beeker,  10  Iowa,  571. 
Lord  Chancellor.  '  Hamilton  v.  Nutt,  34  Conn.  501. 

456 


§§  597-599.]        NOTICE  as  affecting  priority. 

697.  Does  a  conveyance  of  land  to  the  mortgagee  subject 
to  a  mortgage  imply  that  he  has  assigned  the  mortgage.  —  It 
has  ah'eady  been  noticed  that  a  deed  conveying  land  subject 
to  a  certain  mortgage,  or  warranting  it  against  all  incumbrances 
except  tlie  mortgage,  is  notice  to  all  persons  claiming  under  such 
deed  of  the  existence  of  the  mortgage.  If  such  a  deed  of  the 
equity  of  redemption  be  made  to  the  mortgagee  himself,  it  is  a 
question  of  fact  for  a  jury  whether  such  recital  or  warranty  im- 
plies that  the  mortgage  is  not  then  held  by  the  mortgagee,  or  is 
notice  to  his  attaching  creditors  that  the  mortgage  has  been  as- 
signed to  another.! 

The  record  of  a  purchase  money  mortgage  is  not  notice  of  the 
conveyance  for  which  such  mortgage  was  given,  so  as  to  invalidate 
the  title  of  one  who  subsequently  purchases  of  the  vendor  before 
the  first  deed  given  by  him  is  recorded. ^ 

598.  One  who  takes  merely  a  release  of  all  the  interest  of 
the  mortgagor,  while  an  unrecorded  mortgage  made  by  him  is 
outstanding,  obtains  only  the  mortgagor's  equity  of  redemption 
subject  to  such  mortgage.^ 

5.  Lis  Pendens. 

599.  The  force  and  effect  of  the  recording  of  a  mortgage  are 
limited  not  only  by  the  actual  notice  which  the  mortgagee  may 
have  of  prior  unrecorded  conveyances,  but  also  by  constructive 
notice  of  rights  and  claims  of  other  parties,  furnished  by  the  pen- 
dency of  an  action  in  relation  to  the  title  of  the  mortgaged  prop- 
erty, notice  of  the  pendency  of  which  has  been  filed  according  to 
law ;  as  for  instance  the  pendency  of  a  suit  to  set  aside  the  con- 
veyance to  the  mortgagor  as  fraudulent.*  The  doctrine  of  lis 
pendens  is  founded  upon  the  consideration  that  no  suit  could  be 
successfully  terminated  if,  during  its  pendency,  the  property  could 
be  transferred  so  that  it  would  not  be  bound  by  the  decree  or 
judgment  in  the  hands  of  the  assignee. 

This  doctrine  of  lis  pendens^  however,  is  not  carried  to  the  ex- 

1  Clark  V.  Jenkins,  5  Pick.  (Mass.)  280.         *  Tyler  v.  Thomas,  25  Beav.  47 ;  Wors- 

2  Pierce  v.  Taylor,  23  Me.  246 ;  Losey  ley  v.  Earl  of  Scarborough,  3  Atk.  392 
V.  Simpson,  11  N.  J.  Eq.  (3  Stock.)  246;  Bellamy  v.  Sabine,  1  De  G.  &  J.  580 
but  it  is  notice  of  such  deed  to  one  claim-  Ayrault  i'.  Murphy,  54  N.  Y.  203  ;  Mur 
ing  under  the  mortgagee.  Center  v.  P.  &  ray  v.  Ballou,  1  Johns.  (N.  Y.)  Ch.  566 
M.  Bank,  22  Ala.  743.  and  see  Mitchell  v.  Smith,  53  N.  Y.  413 

3  Smith  V.  Mobile  Bank,  21  Ala.  125.  Center  v.  Planters'  &  Mechanics'  Bank,  22 

456 


now    FAR    POSSESSION   IS   NOTICE.  [§  600. 

tent  of  making  it  constructive  notice  of  a  prior  unregistered  deed  ;i 
as  for  instance  proceedings  to  foreclose  an  unrecorded  mortgage 
do  not  constitute  such  a  lis  pendens  as  would  be  notice  to  a  pur- 
chaser of  the  mortgaged  property. 

6.  Sow  far  Possession  is  Notice. 
600.  Possession  by  one  who  is  not  the  owner  of  record  is 
a  fact  which  should  induce  one  proposing  to  purchase  to  inquire 
whether  the  possession  is  founded  on  any  title.  It  is  notice  of  the 
rights  of  the  occupant,  whatever  they  may  be ;  and  if  he  claim  by 
deed,  his  possession  is  regarded  by  some  authorities  as  equivalent 
to  the  recording  of  such  deed.^  If  the  mortgage  be  by  an  absolute 
deed,  the  defeasance  of  which  is  not  recorded,  the  mortgagor's  con- 
tinued possession  and  occupation  of  the  premises,  within  the  knowl- 
edge of  the  grantees  of  the  mortgagee,  is  held  by  some  courts  to  be 
sufficient  notice  of  the  mortgagor's  title  ;  ^  but  by  others  his  pos- 
session is  not  regarded  as  notice  of  the  defeasance.^  In  like  man- 
ner it  has  been  held  that  where  land  is  conveyed,  and  at  the  same 
time  mortgaged  back  for  the  security  of  the  purchase  money,  and 
the  grantor  becoming  the  mortgagee  continues  in  actual  possession 
and  occupation  of  the  land,  but  neither  the  deed  nor  the  mort- 
gage is  recorded,  and  the  mortgagor  in  the  mean  time  makes 
another  mortgage  of  it  to  a  third  person,  the  mortgage  for  the 
purchase  money  is  entitled  to  priority.^ 

Ala.  743  ;  and  see,  also,  cases  collected  in  of  1836,  constructive  notice  of  a  prior  un- 

White  &  Tudor 's  Lead.  Cas.  in  Eq.  4th  recorded  deed  is  not  admissible;  the  notice 

Am.  ed.  vol.  2,  pt.  1,  p.  192  et  seq.  to  be  effectual  must  be  actual.     Therefore 

1  1  Story's  Eq.  Jiir.  §  406  ;  Douglass  v.  open  possession  by  one  who  has  an  unre- 
McCrackin,  52  Ga.  .596;  Newman  v.  Chap-  corded  deed  of  land  will  not  avail  as  no- 
man,  2  Rand.  (Va.)  93.  In  Alabama,  on  tice  of  such  deed,  for  it  is  not  evidence 
the  contrary,  such  suit  is  notice  from  the  of  "  actual  notice."  Dooley  v.  Wolcott,  4 
time  when  service  is  perfected.  Hoole  r.  Allen  (Mass.),  406;  Poniroy  t;.  Stevens,  11 
Atty.  Gen.  22  Ala.  190.  Met.    (Mass.)    244.     Proof   of   such    fact 

2  James  v.  Lichfield,  L.  R.  9  Eq.  51 ;  may,  however,  be  made  in  connection  with 
Taylor  v.  Stibbert,  2  Ves.  Jun.  437  ;  More-  evidence  of  actual  notice.  Sibley  v.  Lef- 
land  V.  Richardson,  24  Beav.  33;  Wilson  fingwell,  8  Alien  (Mass.),  584;  Mara  v. 
V.  Hart,  1  L.  R.  Ch.  App.  467;  Truesdale  Pierce,  9  Gray  (Mass.),  306.  Nor  is  the 
V.  Ford,  37  111.  213;  Brown  v.  Gaffney,  fact  that  land  is  assessed  to  one  who  holds 
28  111.157;  Doyle  i^.  Stevens,  4  Mich.  87 ;  an  unrecorded  deed  actual  notice  of  it. 
Farmer's  Loan  &  Trust  Co.  v.  Maltby,  8  Parker  r.  Osgood,3  Allen  (Mass.), 487, 490- 
Paige  (N.  Y.),361  ;  Emmons  v.  Murray,  16  *  Daubenspeck  v.  Piatt,  22  Cal.  330. 

N.  H.  385 ;  White  &  Tudor's  Lead.  Cas.         *  Crassen  v.   Swoveland,  22  Ind.  427 ; 
in  Eq.  4th  Am.  ed.  vol.  2d,  pt.  1,  p.  180.         Newhall  r.  Pierce,  5  Pick.  (Mass.)  450. 
In  Massachusetts,  since  the  Rev.  Stat.        ^  M'Kecknie  v.  Hoskins,  23  Me.  230. 

457 


§  601.]  NOTICE   AS    AFFECTING    PRIORITY. 

An  actual  possession  of  the  premises,  to  operate  as  implied 
notice,  must  be  visible  and  open,  and  not  merely  a  constructive 
possession. 1 

The  continued  possession  of  the  mortgagor  after  the  premises 
have  been  sold  under  a  foreclosure  against  him  is  not  deemed  con- 
structive notice  of  any  subsequent  title  or  interest  he  may  have 
acquired  which  does  not  appear  of  record.^  Due  diligence  on  the 
part  of  the  mortgagee  in  obtaining  information  after  having  been 
put  upon  inquiry  is  a  test  of  good  faith. ^ - 

But  it  is  held  that  possession,  to  operate  as  notice,  should  be 
inconsistent  with  the  title  upon  which  the  possessor  relies.  The 
owner  and  occupant  of  a  house  conveyed  it  in  fee  to  a  son ;  and 
taking  back  a  lease  for  life,  i-emained  in  possession.  The  son, 
before  the  lease  was  recorded,  gave  a  mortgage  on  the  property 
to  one  who  made  reasonable  inquiries  as  to  liens.^  It  was  held 
that  the  possession  of  the  former  owner  under  the  lease  was  not 
such  as  to  give  the  mortgagee  notice  of  any  rights  in  the  premises. 

Possession  by  a  vendee  under  a  contract  of  purchase,  whether 
it  be  personal  or  by  a  tenant,  is  constructive  notice  of  his  equi- 
table rights  as  purchaser,  and  any  one  taking  a  mortgage  under 
such  circumstances  from  his  vendor  takes  subject  to  his  rights.^ 

601.  An  equivocal,  occasional,  or  temporary  possession  will 
not  take  the  case  out  of  the  operation  of  the  registry  laws.  The 
protection  furnished  by  these  laws  should  not  be  taken  away 
except  upon  clear  proof  of  a  want  of  good  faith  in  the  party  claim- 
ing their  protection,  and  a  clear  right  in  him  who  seeks  to  estab- 
lish notice  by  means  of  possession.^  The  circumstances  must  be 
such  that  a  prudent  man  would  be  put  vipon  inquiry,  and  would 
be  chargeable  with  bad  faith  if  he  did  not  inquire.     "  We  would 

1  Webster  v.  Van  Steenbergh,  46  Barb.  (N.  Y.)  Ch.  316;  Braman  v.  Wilkinson, 

(N.  Y.)  211  ;  Tuttle  v.  Jackson,  6  Wend.  3  Barb.  (N.  Y.)  1.51. 

(N.  Y.)  213,  226.  6  Brown  v.   Volkening,   N.   Y.    Ct.  of 

'■^  Dawson  v.  Danbury  Bank,  15  Mich.  Appeals,  2  N.  Y.    W.  Dig.  86  ;  Trustees 

489 ;   and  see  Cook  v.  Travis,  20  N.  Y.  of  Union    College  v.   Wiieeler,  59   Barb. 

400.  (N.  Y.)  585;  Bogue  r.  Williams,  48  111. 

3  Reed  V.  Gannon,  50  N.  Y.  345,  350.  371  ;    Butler    v.    Stevens,    26    Me.    484  ; 

4  Staples  V.  Fenton,  5  Hun  (N.  Y.),  172.  Wiiite&Tudor'sLeal.  Ca.  in  Eq.  4th  Am. 
A  like  discussion  on  similar  facts  was  ed.  vol.  2d,  pt.  1,  p.  185,  and  cases  cited  ; 
made  in  Bell  v.  Twilight,  18  N.  H.  159;  Merritt  j;.  Northern  R.  Co.  12  Barb.  (N. 
but  the  same  reasons  were  not  assigned.  Y.)  605. 

^  Bank  of  Orleans   v.  Flagg,  3   Barb. 

458 


HOW    FAR    POSSESSION    IS   NOTICE.  [§  601. 

observe,"  said  Chief  Justice  Parsons,  in  an  early  case  in  Massa- 
chusetts,^ "  that  the  statute  requiring  the  registry  of  conveyances 
being  so  very  beneficial,  and  it  being  so  easy  to  conform  to  it, 
when  a  prior  conveyance  not  recorded  until  after  one  of  a  subse- 
quent date  is  attempted  to  be  supported  on  the  ground  of  fraud 
in  the  second  purchaser,  the  fraud  must  be  very  clearly  proved." 
The  using  of  lands  for  pasturing,  or  for  cutting  timber,  is  not  such 
an  occupancy  as  will  charge  a  purchaser  with  notice.  The  pos- 
session must  be  accompanied  by  improvement  of  the  property  to 
constitute  notice.^ 

One  purchasing  or  taking  a  mortgage  of  premises  in  the  posses- 
sion of  a  tenant  is  bound  to  inquire  into  the  nature  and  extent  of 
the  tenant's  interest,  and  is  affected  with  notice  of  that  interest 
whatever  it  may  be.^  Such  possession  is  also  held  to  be  notice  of 
a  collateral  agreement  held  by  the  tenant  for  the  purchase  of  the 
property.* 

A  husband  and  \vife  who  had  long  occupied  a  farm,  conveyed  it 
to  their  son,  and  took  back  a  mortgage  conditioned  for  their  sup- 
port, but  omitted  to  record  it.  They  continued  upon  the  farm  ; 
they  and  the  son  constituting  one  family,  and  all  contributing  to 
its  support.  Some  years  afterwards  the  son  made  a  second  mort- 
gage, which  was  duly  recorded  ;  but  the  second  mortgagee  was 
regarded  as  having  had  notice  of  the  legal  title  of  the  first  mort- 
gagees.^ 

If  the  owner  of  land  convej^s  only  a  partial  interest  in  it,  as 
for  instance  the  wood  and  timber  growing  upon  it,  and  takes 
back  a  mortgage  which  is  not  recorded,  his  continued  possession 
is  not  notice  of  his  claim  to  the  wood  and  timber,  as  against  one 
who  has  purchased  upon  the  faith  of  his  bill  of  sale.** 

Actual  possession  of  land,  by  one  who  holds  an  unrecorded 
bond  for  a  deed,  is  notice  of  his  rights  to  one  who  takes  a  mort- 
gage on  the  land  from  the  vendor,  and  the  mortgagee  will  take  a 
lien  only  on  the  vendor's  right.'''     But  the  possession  of  a  mort- 

1  Norcross  v.  Widgcry,  2  Mass.  506.        •      *  Knight  v.  Bowyer,  23  Beav.  609,  641  ; 

2  M'Mechan  v.  Griffing,  3  Tick.  (Mass.)  Taylor  v.  Stibbert,  2  Ves.  437  ;  Kerr  v. 
149,  and  cases  cited;  Holmes  v.  Stout,  10     Day,  14  Pa.  St.  112. 

N.  J.  Eq.  419 ;  Trustees  of  Union  College  ^  Boggs  v.  Anderson,  50  Me.  161.     See 

y.Wheder,  59  Barb.  (N.Y.)  585,  and  cases  Harrison  v.  N.   J.    R.    &   Transportation 

cited.  Co.  19  N.  J.  Eq.  488. 

3  Cunningham  v.  Pattee,  99  Mass.  248,  "  Patten  v.  Moore,  32  X.  H.  382. 
252.  ''  Doolittle  v.  Cook,  75  111.  354. 

459 


§§  602,  603.]  NOTICE   AS   AFFECTING    PRIORITY. 

gagee,  whose  mortgage  is  recorded,  is  not  notice  of  his  claim 
under  an  .agreement  to  purchase  the  premises,  although  a  rumor 
of  his  purchase  was  current  in  the  neighborhood  ;  ^  for  in  such 
case  his  possession  is  consistent  with  his  record  title,  and  it  may 
well  be  taken  for  granted  that  he  holds  under  the  recorded  title. 
Possession  is  notice  only  of  the  legal  or  equitable  interest  in  the 
land  of  the  person  in  possession.  It  visits  the  purchaser  with 
notice  of  every  fact  and  circumstance  which  he  might  have  learned 
by  making  inquiry  of  the  occupant,  but  it  does  not  impose  upon 
him  the  duty  of  searching  the  record  in  the  name  of  such  occu- 
pant to  ascertain  what  title  he  has  parted  with.^ 

7.  Fraud  as  affecting  Priority. 

602.  Fraudulent  concealment  of  incumbrance.  —  Another 
instance  of  constructive  fraud  arises  when  a  person  having  a  mort- 
gage upon  an  estate  conceals  its  existence,  or  so  acts  in  relation 
to  it  as  to  induce  another  to  purchase  the  estate,  or  to  loan  addi- 
tional money  upon  it,  in  the  belief  that  it  is  free  from  incumbrance. 
Whatever  circumstances  will  amount  to  a  fraudulent  conceal- 
ment or  misrepresentation  may  depend  in  some  measure  upon  the 
fact  whether  the  prior  mortgage  is  recorded  or  not ;  and,  more- 
over, different  considerations  will  control  in  cases  of  this  sort, 
where  a  registry  system  is  in  full  operation  as  it  is  in  this  country, 
from  those  that  prevail  in  England,  where  the  possession  of  the 
title  deeds  for  the  most  part  stands  in  place  of  registration.  But 
whatever  the  circumstances  may  be,  "  the  rule  of  law  is  clear, 
that  where  one  by  his  words  or  conduct  wilfully  causes  another 
to  believe  the  existence  of  a  certain  state  of  things,  and  induces 
him  to  act  on  that  belief  so  as  to  alter  his  own  previous  position, 
the  former  is  concluded  from  averring  against  the  latter  a  differ- 
ent state  of  things  as  existing  at  the  same  time."  ^ 

603.  Inducing  another  to  purchase  the  property  as  unin- 
cumbered.—  A  mortgagee  may  be  so  situated,  that  by  allowing 
one  whom  he  knows  to  be  ignorant  of  the  existence  of  his  mort- 

1  Plumer  v.  Robertson,  6  Serg.  &  R.  Sears,  6  Ad.  &  El.  474  ;  and  see  Peter  v. 
(Pa.)  179.  Russell,  1  Eq.  Ca.  Abr.  322  ;  Savage  v. 

2  Losey  i'.  Simpson,  II  N.  J.  Eq.  (3  Foster,  9  Mod.  35;  Sharpe  v.  Foy,  L.  R. 
Stock.)  246.  4  Ch.  App.  35;  Berrisford  v.  Milward,  2 

8  Per  Lord  Denman,  C.  J.,  in  Pickard  v.     Atk.  49. 

460 


FRAUD   AS   AFFECTING  PRIORITY.  [§  603. 

gage  to  purchase  the  land  and  pay  the  full  value  of  it  without 
disclosing  it,  he  will  be  precluded  from  setting  it  up  against  such 
purchaser ;  such  for  instance  is  the  case  of  an  attorney  who  acts 
for  the  mortgagor  in  drawing  a  deed  for  the  conveyance  of  land 
from  the  mortgagor  to  a  purchaser,  but  does  not  disclose  a  mort- 
gage he  himself  holds  upon  the  property,  though  he  knows  that 
the  purchaser  is  buying  it  for  its  full  value,  in  ignorance  of  the 
mortgage.^ 

A  mortgagee,  however,  whose  mortgage  is  recorded,  will  not 
be  so  postponed  merely  because  he  knew  that  the  mortgagor 
was  making  a  subsequent  conveyance  of  the  premises,  and  did 
not  make  known  his  title  ;  to  have  this  effect,  there  must  be  act- 
ual and  intentional  fraud  on  his  part ;  ^  or  he  must  have  done 
some  act,  or  made  some  representation,  to  influence  the  conduct  of 
another  by  inducing  a  belief  of  a  given  state  of  facts,  when  such 
party,  having  acted  upon  such  belief,  would  be  injured  by  show- 
ing a  different  state  of  facts.  An  estoppel  e7i  pais  then  arises 
against  him.  But  he  loses  no  right  by  neglecting  to  give  a  per- 
sonal notice  of  his  mortgage  to  one  who  is  purchasing.  The  pur- 
chaser is  presumed  to  know  of  the  mortgage  which  has  been  duly 
recorded.     He  is  bound  at  his  peril  to  investigate  the  title.-^ 

So,  also,  if  a  first  mortgagee,  having  notice  of  a  second  mort- 
gage, does  anything  to  the  prejudice  of  the  latter  ;  as  for  in- 
stance if  he  releases  any  part  of  the  mortgaged  premises  without 
receiving  payment  of  any  part  of  his  mortgage  debt,  he  is,  to  the 
extent  of  injury  done,  postponed  to  the  second  mortgage.'* 

If  a  mortgagee  represents  to  another  person  that  the  debt  se- 
cured by  the  mortgage  has  been  paid  or  satisfied,  and  that  noth- 
ing is  due  on  it,  and  thereby  induces  him  to  release  other  security 
and  take  a  mortgage  of  the  same  land,  the  last  mortgage,  as  be- 
tween the  two  mortgagees,  will  take  priority  of  the  first,  although 
the  first  w-as  on  record  when  such  representation  was  made,  as  the 
person  making  the  representation  is  estopped  from  disputing  the 
truth  of  it  with  respect  to  the  other  who  was  thereby  induced  to 
alter  his  condition.^     And  so  if  the  first  mortgagee  in  any  way 

1  L'Amoureux  v.  Vandenburgh,  7  Paige  65  ;  and  see  Marston  r.  Brackett,  9  N.  H. 
(N.   Y.),  316;  and  see  Lee  v.  Munroe,  7  336;  and  sec  Story  Eq.  Juris.  §  391. 
Cranch,  366,  368.  *  Rice  v.  Dewey,  54  Barb.  (N.  Y.)  455. 

2  Paine  v.  French,  4  Ohio,  318;  Brin-  *  Bailey  v.  Gould,  Walk.  (Mich.)  478. 
kerhoff «.  Lansing,  4  Johns.  (N.  Y.)   Ch,  ^  Pratt  v.  Squire,  12  Met.  (Mass.)  494  ; 

461 


§  604.]  NOTICE    AS    AFFECTING   PRIORITY. 

combines  with  the  mortgagor  to  induce  another  to  loan  money 
upon  the  estate,  in  ignorance  of  the  first  mortgage,  this  fraud  will, 
without  doubt,  postpone  his  own  mortgage.^  And  so  if  a  second 
mortgagee  stands  by  and  sees  the  mortgagor  induce  the  first  mort- 
gagee to  release  his  mortgage,  and  take  an  assignment  of  another 
mortgage  which  he  supposes  to  be  next  in  priority  to  his  own, 
but  which  is  in  fact,  subsequent  to  the  second  mortgage,  as  against 
the  second  mortgagee,  this  subsequent  mortgage  will  be  preferred 
to  his  own. 2  When  the  holder  of  one  of  two  mortgage  deeds,  exe- 
cuted on  the  same  day,  has  represented  to  a  person  about  to  take 
an  assignment  of  the  other  mortgage  that  the  deeds  were  deliv- 
ered at  the  same  time,  and  that  there  was  no  priority  in  his  deed, 
he  is  precluded  from  claiming  a  priority  against  such  person.^ 

8.  Negligence  as  affectmg  P7'iority. 

604.  Negligence  is  not  fraud,  though  it  may  be  evidence 
of  it."^  —  When  a  person  having  a  mortgage  upon  an  estate,  or 
other  interest  in  it,  negligently  puts  it  in  the  power  of  another  to 
sell  or  mortgage  the  property  to  a  third  person,  who  is  ignorant  of 
such  mortgage  or  interest,  he  cannot  afterwards  assert  his  own 
title  in  priority  to  the  title  of  the  party  whom  he  has  suffered  to  be 
deceived.^  By  negligence  is  meant  the  want  of  that  reasonable  de- 
gree of  diligence  and  care  which  a  man  of  ordinary  prudence  and 
capacity  would  be  expected  to  exercise  in  the  same  circumstances. 

A  person  taking  a  mortgage  or  other  conveyance  of  real  estate 
is  chargeable  with  notice  of  such  facts  as  are  indicated  upon  the 
face  of  the  deeds,  whether  they  indicate  anything  to  him  or  not ; 
for  if  he  does  not  use  the  precaution,  which  common  prudence 
requires,  to  employ  a  solicitor,  he  is  in  the  same  situation,  with 

Fay  V.   Valentine,  12   Pick.   (Mass.)   40;  Romilly  thus  stated  the  principle  of  this 

Hearne  v.  Rogers,  9  Barn.   &  Cres.  586  ;  rule :  A  person  who  puts  it  in  the  power 

Miller  v.  Bingham,  29  Vt.  82 ;  Cliester  v.  of  another   to  deceive  and  raise   money, 

Greer,  5  Humph.  (Tenn.)  26.  must  take  the  consequences.     He  cannot 

1  Teter  v.  Russell,  1  Eq.  Ca.  Abr.  322.  afterwards  rely  on  a  particular  or  a  dif- 

2  Stafford  v.  Bailou,  17  Vt.  329.  ferent  equity."  Most  of  the  English  cases 
^  Broome  v.  Beers,  6  Conn.  198.  upon  this  point  relate  to  the  matter  of  the 
*  Jones  y.  Smith,  1  Hare,  43  ;  Worthing-  delivery  of  title  deeds;  and  therefore  are 

ton  V.  Morgan,  16  Sim.  547,  for  the  most  part  of  use  in  this  country 
^  Briggs  V.  Jones,  L.  R.  10  Eq.  98;  only  as  illustrating  the  general  principle 
Robinson's  Law  of  Priority,  54 ;  Rice  v.  of  the  later  cases.  See  Thorpe  v.  Holds- 
Rice,  2  Drew,  73 ;  1  Fisher  on  Mort.  3d  worth,  L.  R.  7  Eq.  139 ;  Layard  v.  Maud, 
ed.  550.     In  Briggs  v.  Jones,  supra,  Lord  L.  R.  4  Eq.  397. 

462 


NEGLIGENCE   AS   AFFECTING   PRIORITY.       [§§  605,  606. 

respect  to  constructive  notice,  as  he  would  have  been  had  he  em- 
ployed a  solicitor. 1 

605.  When  a  prior  lien  is  extinguished,  the  lien  next  in 
order  obtains  priority.  — It  sometimes  happens  that  a  mortgagee, 
without  intending  to  impair  his  own  security,  but  through  want 
of  care  in  dealing  with  the  mortgaged  property,  may  lose  his  posi- 
tion of  priority  and  find  himself  in  the  place  of  a  subsequent  mort- 
gagee. Thus,  a  mortgagee  knowingly  and  understandingly  can- 
celled his  mortgage  when  there  was  a  second  mortgage  upon  the 
property,  and  in  lieu  of  the  mortgage  took  an  absolute  conveyance 
of  the  property,  in  the  absence  of  any  fraud  on  the  part  of  the 
holder  of  the  second  mortgage,  the  lien  of  the  first  mortgage  will 
not  be  revived  nor  the  second  mortgagee  prevented  from  reaping 
the  benefit  of  the  priority  of  his  mortgage  upon  the  records.^  In 
like  manner,  where  a  senior  mortgage  was  released  without  being 
paid,  and  at  the  same  time  a  new  mortgage  was  taken  for  the 
same  sum,  the  question  was  whether  a  junior  mortgage  was 
thereby  let  into  the  position  of  priority.  Although  the  transac- 
tion was  a  simultaneous  one,  and  was  not  intended  to  impair  the 
lien  of  the  first  mortgage,  it  was  held  that  the  release,  which  was 
absolute  in  terms,  was  a  discharge  of  the  lien,  and  the  new  mort- 
gage was  only  a  subordinate  lien.*^ 

But  when  a  creditor  to  whom  land  has  been  conveyed  in  trust, 
to  secure  a  debt,  by  a  deed  absolute  in  form  reconveys  it  to  his 
grantor,  and  simultaneously  takes  back  a  mortgage  to  secure  the 
same  debt,  he  does  not  lose  his  lien  in  equity  as  against  a  judg- 
ment rendered  against  the  debtor  subsequent  to  the  original  con- 
veyance.* 

606.  Priority  of  lien  between  holders  of  several  notes.  — 
Where  there  are  several  notes  secured  by  a  mortgage,  by  some 

1  Kennedy  v.  Green,  3  M.  &  K.  699.  the  mortgage  in  such  case  would  be  glv- 
The  Master  of  the  Rolls,  referring  to  this  ing  encouragement  to  negligence,  and 
case  in  Greensdale  v.  Dare,  20  Beav.  284,  would  destroy  the  value  of  a  public  rec- 
291,  said  that  the  doctrine  of  this  case  re-  ord.  And  see  Smith  i'.  Brackett,  36  Barb, 
quires  to  be  administered  with  the  greatest  (N.  Y.)  571;  Banta  v.  Garnio,  I  Saudf. 
care  and  delicacy,  and  that  probably  that  (N.  Y.)  Ch.  383. 

each  case  must  stand  upon   the    peculiar        ^  Woollen  r.  Ilillen,  9  Gill  (Md.),  185. 
facts  belonging  to  it.  To  the  same  efiect,  see  Neidig  i-.  White- 

2  Frazee  v.  Inslee,  2  N.J.  Eq.  (1  Green)     ford,  29  Md.  178. 

239.     The  Chancellor  said,  that  to  revive        *  Christie  v.  Hale,  46  111.  117. 

463 


§  606.]  NOTICE    AS   AFFECTING   PRIORITY. 

authorities  they  are  entitled  to  priority  in  payment  according  to 
the  order  of  their  maturity.  If  judgment  is  obtained  on  one  of 
the  notes,  that  takes  the  place  of  the  note  on  which  it  was  ren- 
dei'ed.^  The  holder  of  the  note  first  maturing  may,  upon  default, 
or  at  any  time  afterwards,  foreclose  and  sell  the  premises  in  satis- 
faction of  his  debt.^  His  delay  to  enforce  his  rights  does  not  im- 
pair his  prior  riglit.^  But  the  mortgagee  may  by  agreement  give 
to  particular  notes  a  prior  lien  upon  the  security,  irrespective  of 
the  time  of  their  maturity  ;  and  therefore  one  who  takes  an  as- 
signment of  a  part  of  the  notes  secured  by  a  mortgage  should  in- 
quire of  the  maker  and  of  the  payee  whether  the  others  have  been 
sold  with  a  preferred  lien  upon  the  security.  It  is  negligence  on 
his  part  not  to  make  such  inquiry  ;  and  if  the  preferred  lien  has 
been  given,  it  will  be  valid  against  such  assignee.^  One  holding 
a  mortgage  securing  several  promissory  notes  may  assign  part  of 
the  notes,  and  a  corresponding  interest  in  the  moi'tgage,  giving 
priority  to  the  assignee,  or  a  pro  rata  interest  in  the  security,  ac- 
cording to  the  terms  of  the  assignment.^ 

A  mortgage  executed  by  one  partner  in  the  partnership  name 
of  real  estate  belonging  to  the  firm,  to  secure  a  partnership  debt, 
conveys  the  legal  interest  of  such  partner  and  the  equitable  in- 
terest of  the  co-partner ;  as  when  A.  executed  a  mortgage  in  the 
firm  name  of  A.  &  Bro.,  and  himself  acknowledged  it.  But  a 
person  taking  a  subsequent  mortgage,  properly  executed  by  both 
partners,  has  priority  as  to  the  interest  of  the  partner  who  did  not 
execute  the  first  mortgage.*'  A  mortgage  by  one  tenant  in  com- 
mon of  his  interest  in  partnership  real  estate,  made  for  a  valid 
consideration  to  one  who  has  no  notice  of  the  partnership,  is  not 
subject  to  any  equities  arising  out  of  the  partnership  relation  of 
the  grantor.^ 

Of  two  mortgages  executed  at  the  same  time,  to  secure  debts 
which  mature  at  different  times,  if  there  be  no  other  ground  of 
priority,  according  to  some  authorities  that  is  the  prior  lien  which 
secures  the  payment  of  the  note  which  first  falls  due.  The  rule 
is  the  same  as  it  is  when  one  mortgage  secures  debts  maturing 

1  Funk  V.  McReynold,  33  111.  481.  &  Lane  v.  Davis,  U  Alien  (Mass.),  225. 

-  Marine  Bank  y.  International  Bank,  9  ''  Chavener  v.  Wood,  2  Oregon,  182; 
"Wis.  57;  Wood  v.  Trask,  7  Wis.  566;  Haynes  v.  Seachrest,  13  Iowa,  455.  And 
Lyman  v.  Smith,  21  Wis.  674.  see  Brazlcton  v.  Brazleton,  16  Iowa,  417. 

'^  Lyman  v.  Smith,  supra.  "*  See  §§  119,  120;    M'Dermot  v.  Lau-. 

*  Walker  v.  Dement,  42  111.  272.  rence,  7  S.  &  K.  (Pa.)  438. 

464 


NEGLIGENCE   AS   AFFECTING  PRIORITY.      [§§  607,  608. 

at  different  times ;  they  are  to  be  paid  in  the  order  of  their  ma- 
turity.^ It  makes  no  difference  in  the  order  of  payment,  that 
after  the  assignment  of  the  note  first  maturing  to  one  person,  the 
note  next  maturing  is  assigned  to  another  with  the  mortgage  or 
trust  deed.  The  holding  of  the  mortgage  security  gives  no  pref- 
erence in  order  of  payment.^ 

607.  Priority  between  unrecorded  mortgages.  —  As  be- 
tween several  unrecorded  mortgages  or  other  conveyances,  that 
of  prior  execution  takes  precedence.^  And  so  where  several  mort- 
gages are  executed  and  recorded  at  the  same  time,  whether  the 
parties  intended  that  one  of  them  should  have  priority  is  a  mat- 
ter of  fact  for  the  jury  to  determine  from  the  evidence  of  such 
intention  ."^ 

608.  Agreement  fixing  the  priority  of  mortgages.  —  The 
parties  may,  as  between  themselves,  make  a  valid  agreement, 
though  it  be  verbal  only,  that  one  of  two  mortgages  shall  be 
prior  to  the  other,  and  the  order  of  record  is  then  immaterial  un- 
less they  are  subsequently  assigned  to  other  persons  who  have  no 
notice  of  the  agreement ;  ^  although,  according  to  some  authori- 
ties, the  want  of  notice  on  the  part  of  the  assignee  makes  no 
difference,  but  the  mortgage  continues  subject  to  the  equity  of 
this  arrano-ement.*"  But  such  an  aarreement  itself  when  in  writ- 
ing  is  not  entitled  to  record,  and  therefore,  if  recorded,  is  not 
notice  to  subsequent  purchasers.'^ 

A  mortgagee  has  an  unquestionable  right  to  waive  his  priority 
in  favor    of    a  subsequent    mortgagee.^      But  a  mere    admission 

1  Isett  V.  Lucas,  17  Iowa,  503;  United  ^  Jones  v.  Phelps,  2  Barb.  (N.  Y.)  Ch. 
States  Bank  v.  Covert,  13  Ohio,  240;  440;  Rhoades  t7.  Canfield,  8  Paige  (N.  Y.), 
Murdock  v.  Ford,  17  Ind.  52;  Harris  v.  545;  New  York  Chemical  Manuf.  Co.  v. 
Harlan,  14  Ind.  439  ;  Marine  Bank  i'.  In-  Peck,  6  N.  J.  Eq.  37 ;  Freeman  v.  Schroeder, 
ternational  Bank,  9  Wis.  57.  According  43  Barb.  (N.  Y.)  618  ;  S.  C.  29  How.  Pr. 
to  other  authorities  this  circumstance  is  263  ;  Sparks  y.  State  Bank,  7  Black.  (Ind.) 
no  evidence  to  determine  the  fact  of  pri-  469  ;  State  Bank  v.  Campbell,  2  Rich, 
ority.    Gilraan  v.  Moody,  43  N.  II.  239.  (S.  C)  Eq.  179. 

2  Gwathmeys  v.  Ragland,  Rand.  (Va.)  ^  Conover  v.  Van  Mater,  18  N.  J.  481  ; 
466.  Freeman  v.  Sciiroeder,  supra. 

8  Ely  V.  Scofield,  35  Barb.  (N.  Y.)  330;        '  Gillig  v.  Maas.«,  28  N.  Y.  191. 
Berry  v.  Mut.  Ins.  Co.  2  Johns.  (N.  Y.)         »  Clason  v.  Shepherd,  6  Wis.  369. 
Ch.   603. 

*  Oilman  v.  Moody,  43  N.  H.  239. 

VOL.  I.  30  465 


§  608.]  NOTICE   AS   AFFECTING   PRIORITY. 

by  one  of  two  mortgagees,  whose  mortgages  were  executed,  de- 
livered, and  recorded  on  the  same  day,  that  there  is  no  priority  of 
one  mortgage  over  the  other,  although  made  by  a  writing  signed 
by  him,  does  not  preclude  his  afterwards  claiming  a  priority  in 
time  for  his  own  mortgage,  because  such  admission  is  like  a 
parol  declaration,  subject  to  be  explained  or  contradicted. ^  But 
such  writing  would  be  admissible  in  evidence  to  show  that  the 
deeds  took  effect  simultaneously. ^ 

Without  any  agreement,  there  may  be  facts  and  circumstances 
which  will  entitle  one  of  two  mortgages,  recorded  at  the  same 
time,  to  an  equitable  priority  over  the  other  ;  ^  and  on  the  other 
hand,  although  one  mortgage  may  have  been  recorded  before 
another,  there  may  be  facts  which  will  entitle  the  two  mortgages 
to  stand  upon  an  equality.  An  instance  of  the  latter  kind  oc- 
curs when  a  trustee,  having  two  funds,  loans  them  to  the  same 
person,  upon  two  distinct  mortgages,  without  the  intention  of  giv- 
ing one  priority  to  the  other.*  Moreover,  the  mortgage  first  re- 
corded, and  therefore  primd  facie  the  prior  lien,  may  be  shown 
to  have  been  conditionally  recorded  ;  and  a  second  mortgage,  re- 
corded before  the  condition  was  complied  with,  may  be  entitled 
to  precedence.^ 

It  is  no  ground  for  giving  priority  to  a  junior  mortgage,  that 
the  money  received  upon  it  was  used  in  conserving  the  mortgaged 
property,  or  in  improving  it  in  any  wdj.  Although  a  portion  of 
a  line  of  railway  subject  to  a  mortgage  be  wholly  constructed  by 
money  raised  on  a  second  mortgage,  yet  this  fact  gives  the  latter 
no  priority  over  the  former.  The  prior  mortgage,  although  given 
before  the  road  is  built,  attaches  as  fast  as  it  is  built,  and  to  all 
property  covered  by  the  terms  of  the  mortgage,  as  fast  as  it 
comes  into  existence.® 

^  Beers  v.  Broome,  4  Conn.  247.  wards  constructing  the  railroad,  yet  if  it 

-  Beers  v.  Hawley,  2  Conn.  467.  assumed  to  convey  and  mortgage  the  rail- 

^  Stafford   v.    Van  Rensselaer,  9  Cow.  road,  which  the  company  was  authorized 

(N.  Y.)  316.  by  law  to  build,  together  with  its  super- 

*  Rhoades  v.  Canfield,  8  Paige  (N.  Y.),  structure,    appurtenances,    fixtures,     and 

545.  rolling  stock,  these  several  items  of  prop- 

^  Freeman  v.  Schroeder,  43  Barb.  (N.  erty,  as  they  came  into  existence,  would 

Y.)  618.  become  instantly  attached  to  and  covered 

^  Galveston  R.  v.  Cowdrey,   11   Wall,  by  the  deed,  and  would  have  fed  the  es- 

459.     "  Had  the  first  mortgage,"  says  Mr.  toppel  created  thereby.     No  other  rational 

Justice  Bradley,   "  been   given    before   a  or  equitable  rule  can  be  adopted  for  such 

shovel  had  been  put  into  the  ground  to-  cases.     To  hold  otherwise  would  render  it 

466 


NEGLIGENCE   AS   AFFECTING   PRIORITY.  [§  609. 

609.  When  a  mortgage  has  priority  over  a  mechanic's  lien. 
A  mortgage  executed  before  the  commencement  of  a  building 
erected  on  the  land  is  paramount  to  a  mechanic's  lien  for  work 
and  materials  furnished  for  the  building.^  If  a  mortgagee,  while 
in  possession,  erects  a  house  on  the  premises,  a  mechanic's  lien 
for  this  work  is  subsequent  to  the  mortgage.^  A  mortgage  for 
the  purchase  money  has  priority  over  a  mechanic's  lien,  which 
attached  to  a  building  on  the  property  while  it  was  under  contract 
for  sale  to  the  mortgagor,  and  before  the  deed  and  mortgage  were 
executed.^ 

necessary  for  a  railroad  company  to  bor-  i  Hershee  v.  Hershey,  15   Iowa,   185; 

row  in  small  parcels  as   sections  of  the  Jessup  v.   Stone,   13  Wis.  466  ;    Jean  v. 

road   were    completed,    and    trust    deeds  Wilson,   3S  Md.   288 ;  Lyle   v.  Ducomb, 

could  be  safely  given  thereon.     The  prac-  5  Biun.  (Pa.)  585  ;  Hoover  v.  Wheeler,  23 

ticc   of  the    country   and    its   necessities  Miss.  314. 

are  coincident  with  the  rule."     See,  also,  2  Ferguson  v.  Miller,  6  Cal.  402. 

Willink  V.  Morris  Canal  &  Banking  Co.  3  gee    §   466;    Rees  v.   Ludington,    13 

3  Green  (N.  J.)  Ch.  377,  402.  Wis.  276. 

467 


CHAPTER  XIV. 

VOID   AND   USURIOUS   MORTGAGES. 

Introductory.  —  In  this  chapter  it  is  proposed  to  treat  briefly 
of  some  of  the  circumstances  under  which  a  mortgage  duly  exe- 
cuted and  recorded  may  be  declared  defective  or  void.  These  cir- 
cumstances are  inherent  in  the  transaction  itself,  and  in  some  form 
vitiate  the  consideration  of  the  mortgage.  For  the  most  part, 
they  are  the  same  vices  which  invalidate  any  contract.  Want 
or  failure  of  consideration,  and  fraud  or  usury  in  it,  are  not  mat- 
ters peculiar  to  mortgages ;  and  it  is,  of  course,  impossible  to  treat 
at  length  of  these  matters,  which  are  themselves  the  subjects  of 
general  treatises  under  the  titles  of  Contracts,  Frauds,  and  Usury. 
Only  adjudications  relating  especially  to  mortgages  are  presented  ; 
and  these  not  fully  on  those  points  which  are  common  to  all  con- 
tracts. The  subject,  however,  opens  one  inquiry  not  presented  in 
other  contracts,  and  that  is,  whether  the  law  of  the  place  where 
the  mortgaged  land  is  situated,  when  the  contract  has  been  exe- 
cuted in  another  state  or  country,  should  govern  as  to  the  law  of 
usury  applicable  to  it ;  or  should  govern,  too,  as  to  other  statutes 
which  may  invalidate  the  contract ;  and,  therefore,  this  part  of 
the  subject  has  been  examined  more  fully  than  its  importance 
would  seem  to  justify,  except  upon  the  principle  that  the  im- 
portance of  questions  treated  of  should  be  determined  by  the  rela- 
tive difficulty  or  uncertainty  attending  them. 

PART  I. 

VOID    MORTGAGES. 

1.    Want  or  Failure  of  Consideration. 

610.  Consideration.  —  In  general  the  same  defences  may  be 
made  to  an  action  on  a  mortgage,  the  statute  of  limitations  ex- 
cepted, that  may  be  made  to  an  action  on  the  debt,  —  as  that  it 
468 


WANT    OF   CONSIDERATION.  [§  Gil. 

was  given  for  an  illegal  consideration,  or  was  obtained  by  duress 
and  fraud.i  A  mortgage,  like  every  other  contract,  must  be 
founded  on  a  sufficient  consideration.  The  consideration  need 
not  be  one  moving  directly  from  the  mortgagee  to  the  mort- 
gagor ;  but  any  benefit  to  the  mortgagor  or  to  a  stranger,  or 
damage  or  loss  to  the  mortgagee,  rendered  or  sustained  at  the 
request  of  the  mortgagor,  is  sufficient.^  In  a  mortgage  of  in- 
demnity the  liability  of  the  mortgagee  to  loss  or  damage  is  a  suffi- 
cient consideration  for  the  mortgage."^  A  liability  to  loss  on  the 
part  of  the  mortgagee  is  a  consideration  for  a  mortgage  given  to 
secure  him  against  it,  as  much  as  is  a  direct  benefit  to  the  mort- 
gagor, of  whatever  nature  it  may  be.^ 

In  Maryland,  under  a  provision  of  statute  that  no  mortgage 
shall  be  valid  except  as  between  the  parties,  unless  there  be  in- 
dorsed thereon  an  oath  or  affirmation  of  the  mortgagee  that  the 
consideration  in  said  mortgage  is  true  and  lond  fide  as  therein  set 
forth,  ^  the  want  of  such  affidavit  is  fatal  to  the  validity  of_  the 
mortgage  when  it  is  assailed  by  a  creditor,  or  by  a  subsequent 
bond  fide  purchaser.^  One  claiming  under  the  mortgagor  with 
notice  stands  in  no  better  position  in  this  respect  than  the  mort- 
gagor himself.'^ 

611.  It  is  not  necessary  that  any  consideration  should  pass 
at  the  time  of  the  execution  of  the  mortgage.  That  may  be 
either  a  prior  or  a  subsequent  matter.  Mortgages  are  very  fre- 
quently given  to  secure  existing  debts,  in  which  cases  the  consid- 
eration is  generally,  altogether,  a  past  one.^     INIoreover,  the  re- 

1  See   §§  64,  70,  and   chapters   xxxii.     the  mortgage.     Code,  1860,  art.  24,  §  29, 
division  3,  and  xxix.  division  5  ;  Vinton     p.  136. 

V.  King,  4  Allen  (Mass.),  562  ;  Bush  v.  The  affidavit  may  be  made  by  one  of 

Cooper,  26   Miss.  599 ;  Atwood   v.  Fisk,  several   mortgagees,  or  by  an  agent  of  a 

101  Mass.  363,  366,  per  Ames,  J.  mortgagee,  who  shall,  in   addition   to  the 

2  1    Selwyn's  N.  P.  43 ;   Magruder   v.  above   affidavit,  make  affidavit  to  be  in- 
State  Bank,  18  Ark.  9.  dorsed  on  the  mortgage  that  he  is  such 

8  Simpson  v.  Robert,  35  Ga.  180.  agent,   which   affidavit   is   proof  of   such 

*  Haden  v.  Buddensiek,  4  Hun  (N.  Y.),  agency,  and  the  president,  or  other  officer 

649.  of  a  corporation,  or  the  executor  of  the 

s  Code,  1860,  art.  24,  §  29  ;  Stat.  1846,  mortgagee,  may  make  such  affidavit.     lb. 

c.   271.     See   §   366.     This  affidavit  may  art.  20,  §  30,  p.  137. 

be  made  at  any  time  before  the  mortgage  ^  Coekey  v.  Milne,  16  Md.  200. 

is  recorded,  before  any  one  authorized  to  "^  Phillips  v.  Pearson,  27  Md.  242. 

take  the  acknowledgment  of  a  mortgage,  ^  Wright  r.  Bundy,  11  Ind.  398;  Cooley 

and  the  affidavit  shall  be  recorded  with  v.  Hobart,  8  Iowa,  358. 

469 


§  612.]  VOID   MORTGAGES. 

newal  of  a  note,  or  extension  of  the  time  of  payment  of  ^  debt, 
is  a  sufficient  consideration  for  a  mortgage  by  a  third  person  to 
secure  such  debt.-^ 

Sometimes,  however,  a  mortgage  is  made  for  the  purpose  of 
raising  money  by  subsequent  negotiation,  in  which  case  the 
consideration  is  subsequent,  and  the  mortgage  has  no  valid- 
ity until  it  is  transferred  to  some  one  for  value,  and  it  is  then 
subject  to  any  incumbrance  intervening  before  the  negotiation 
of  it.2 

612.  Want  of  consideration,  or  the  failure  of  it,  is  a  good 
defence  to  an  action  upon  the  mortgage.*^  A  mortgage  for  a 
fixed  sum  founded  upon  no  consideration  except  an  undertaking 
to  furnish  goods,  which  were  never  furnished,  cannot  be  enforced, 
except  in  the  hands  of  a  bond  fide  purchaser  for  value.^  A  mort- 
gage given  for  future  credit,  if  no  advances  are  made  upon  it  and 
no  further  credit  is  given,  is  without  consideration.  If  taken  for 
that  purpose  it  cannot  be  enforced  for  a  different  purpose.^  The 
sum  named  in  the  deed  as  the  consideration  is  of  no  importance 
when  in  terms  the  mortgage  secures  future  advances.*^  It  is  se- 
curity for  the  advances  actually  made  upon  it,  and  for  nothing 
further.  When  given  to  secure  future  advances,  or  the  value  of 
goods  to  be  purchased,  it  is  valid  to  the  extent  of  the  goods  sold 
or  the  advances  made  on  account  of  tlie  mortgage,  although  the 
mortgagor  be  in  fact  insolvent  at  the  time,  and  becomes  bank- 
rupt shortly  afterwards.'' 

When  a  mortgage  has  been  intrusted  to  an  agent  for  the  pur- 
pose of  raising  money,  and  the  agent  uses  it  for  another  purpose 
either  wholly  or  in  part,  as  for  instance  to  secure  a  judgment 
against  other  pei'sons,  such  use  is  a  misappropriation  of  it,  such 
as  will  invalidate  the  security.^  If  an  agent  who  is  authorized 
only  to  receive  a  conveyance  of  lands  to  his  principal  takes  a  con- 
vej'ance  to  himself,  and  makes  a  mortgage  to  one  having  notice  of 

1  Magrndcr  v.  State  Bank,  18  Ark.  9  ;  *  Fisher  v.  Meister,  24  Mich.  447. 
Bank  of  Muskingum  v.  Carpenter,  Wright  ^  McDowell  v.  Fisher,  25  N.  J.  Eq.  93  ; 
(Ohio),  729.  Mitzner  v.  Kussell,  29  Mich.  229;  Fisher 

2  See  §  86  ;    Schafer  v.  Reilly,  50  N.  Y.  v.  Meister,  24  Mich.  447. 

Gl  ;  Mullison's  Estate,  68  Pa.  St.  212.  6  Miller  v.  Lockwood,  32  N.  Y.  293. 

3  Wearse  v.  Pcirce,  24  Pick.  (Mass.)  141  ;  ''  Marvin  v.  Chambers,  12  Blatchf.  495. 
Smith  V.  Newton,  38  111.  230;  Conwell  v.  »  Craver  v.  Wilson,  14  Abb.  (N.  Y.)  Pr. 
Clifford,  45  Ind.  392.  N.  S.  374. 

470 


WANT   OF   CONSIDERATION.  [§§  613-615. 

the  fact,  it  is  void  as  against  the  principal.^  An  officer  or  agent, 
who  takes  a  mortgage  to  himself  to  secure  the  payment  of  a  debt 
to  his  principal,  holds  it  by  implication  of  law  as  trustee  for  the 
principal.^ 

613.  A  mortgage  under  seal  implies  consideration  at  com- 
mon law,  and  none  need  be  proved,  and  it  is  good  if  it  is  shown 
that  none  ■<vas  given.  Neither  courts  of  law  or  equity  will  allow 
the  consideration  to  be  inquired  into,  for  the  sake  of  declaring  the 
instrument  void  for  want  of  consideration  ;  but  they  will,  for  the 
purpose  of  ascertaining  what  is  due  upon  it.^  In  New  Jersey  it  is 
provided  by  statute  that  the  defence  of  fraud  in  the  consideration 
of  a  deed  may  be  made  as  fully  as  if  the  instrument  were  not 
under  seal  ;'^  and  in  New  York  a  seal  affords  only  presumptive 
evidence  of  a  sufficient  consideration  ;  this  presumption  may  be 
rebutted  in  the  same  manner  and  to  the  same  extent  as  if  the  in- 
strument were  not  under  seal.^ 

614.  A  mortgage  may  be  made  by  way  of  gift,  when  the 
rights  of  creditors  are  not  thereby  interfered  with.  When  exe- 
cuted and  delivered  it  is  as  valid  as  if  it  were  based  upon  a  full 
consideration.  It  is  not  open  to  the  objection  that  it  is  a  vol- 
untary executory  agreement,  but  may  be  enforced  according  to  its 
terms,  as  an  executed  conveyance.^ 

615.  To  support  a  mortgage  made  for  the  accommodation 
of  another,  there  must  be  a  consideration.  If  the  debt  of  the 
other  person,  which  is  thus  secured  by  the  mortgage,  be  already 
incurred,  there  must  be  a  new  and  distinct  consideration  for  the 
obligation  incurred  by  the  mortgagor,  as  surety  or  guarantor  of 
that  debt.  But  if  the  debt  secured  be  incurred  at  the  same  time 
that  the  mortgage  is  given,  and  this  collateral  undertaking  enters 

1  "Wisconsin  Bank  v.  Morley,  19  Wis.  62.         *  New  Jersey  :  Laws,  1871,  p.  8  ;  and 

2  Rood  V.  Winslow,  Walk.  (Mich.)  see  Feldman  v.  Gamble,  26  N.  J.  Eq.  494, 
340.     In  this  case  the  mortf^age  was  to  a    496. 

county  commissioner,  the  debt  being  due  ^  New  York  :  3  R.  S.  1875,  p.  672  ; 
to  the  county.  Graver  v.  Wilson,  14   Abb.    (N.   Y.)   N. 

3  Farnum  v.  Burnett,  21  N.  J.  Eq.  87  ;     S.  374. 

Calkins  v.  Long,  22  Barb.  (N.  Y.)  97  ;  «  Bucklin  v.  Bucklin,  1  A'  b.  App.  Dec. 
Parker  v.  Parmele,  20  Johns.  (N.  Y.)  (N.  Y.)  242;  Brooks  v.  Dalrymple,  12 
130    134.  Allen  (Mass.),  102. 

471 


§  616.]  VOID    MORTGAGES. 

into  the  inducement  to  the  creditor  for  giving  the  credit,  then  the 
consideration  for  such  contract  is  regarded  as  consideration  also 
for  the  collateral  undertaking  by  way  of  mortgage.^ 

616.  When  mortgagor  estopped  to  deny  consideration.  — 
The  mortgagor  is  not  estopped  by  the  mortgage  from  showing  a 
failure  or  want  of  consideration  for  the  note  secured  by  the  mort- 
gage.^ But  this  defence  cannot  be  taken  against  an  assignee  for 
value  before  maturity.^  Such  mortgage,  though  void  between 
the  original  parties,  is  valid  in  the  hands  of  a  bond  fide  assignee 
without  notice  of  the  illegal  consideration  for  which  it  was  given.* 
It  may  thus  happen  that  the  mortgagee  may,  in  effect,  give  a 
better  title  than  he  himself  holds.  "  In  the  case  of  a  conveyance 
of  real  estate  to  defraud  creditors,  the  grantee  cannot  hold,  but 
one  who  takes  it  from  him  without  notice  may.  But  the  law 
goes  further  in  favor  of  commerce,  and  gives  a  high  degree  of 
character  and  honor  to  bills  of  exchange  and  promissorj'^  notes  in 
the  hands  of  an  indorsee,  without  actual  or  constructive  notice  of 
anything  affecting  their  validity  or  credit."  ^  But  this  rule  does 
not  apply  to  notes  which  are  by  statute  made  absolutely  null  and 
void,  as  notes  made  in  violation  of  statutes  against  usury  and 
gaming  sometimes  are.^ 

A  note  and  mortgage  deposited  in  escrow,  and  afterwards 
fraudulently  taken  and  put  in  circulation,  without  the  terms  and 
conditions  of  the  deposit  having  been  complied  with,  are  doubt- 
less void  in  the  hands  of  a  purchaser  or  assignee  for  value  with- 
out notice.  In  such  case  the  mortgage  never  has  a  legal  exist- 
ence, and  the  rules  of  commercial  paper  have  no  application  to 
the  note  accompanying  it,  although  it  be  negotiable  in  form.*^ 

1  Davidson  v.  King,  51  Tud.  224.     See  a  debt,  shall  be  void  in  the  hands  of  a  pur- 
§  458.  chaser   for  value  without  notice,  for  the 

2  Jones  V.  Jones,  20  Iowa,  388 ;  Wearse  reason  that  consideration  of  the  debt  was 
V.  Peirce,  24  Pick.  (Mass.)  141.  forbidden  by  law.     Battle's  Revisal,  1873, 

8  Cornclli).  Hichens,  11  Wis.  353  ;  Still-  c.  50,   §   5.     This  statute  applies  to  usu- 

well  V.  Kellogg,  14  Wis.  461.  rious  mortgages.    Coor  v.  Spicer,  65  N.  C. 

4  Cazet  V.  Field,  9  Gray  (Mass.),  329  ;  401. 

Brigham  v.  Potter,  14  Gray  (Mass.),  522;  ^  Per   Shaw,   C.  J.,  in  Cazet  v.  Field, 

Taylor  v.  Page,  6  Allen  (Mass.),  86  ;  Earl  supra. 

V.  Clute,  2  Abb.  App.  Dec.  (N.  Y.)  1,  and  «  Bowyer   r.  Bainpton,  2    Stra.   1155; 

cases  cited.     In  North  Carolina  it  is  pro-  Kendall  v.   Robertson,  12  Cash.   (Mass.) 

Tided  by  statute  that  no  conveyance  or  156. 

mortgage,  made  to  secure  the  payment  of  ''  Chipman  v.  Tucker,  38  Wis.  43;  S.  C. 

472 


ILLEGAL  CONSIDERATION.  [§  617. 

2.  Illegal  Consideration. 

617.  Illegality  of  consideration  avoids  a  mortgage,  whether  it 
consist  in  a  violation  of  the  common  hiw  or  of  a  statute.^  A  mort- 
gage given  to  secure  a  debt  made  illegal  by  statute,  as  for  in- 
stance a  debt  incurred  for  intoxicating  liquors  illegally  sold  to 
the  mortgagor,  cannot  be  enforced  ;  and  such  a  mortgage  is  in- 
valid, although  not  given  to  the  seller  of  the  liquors,  but  at  his 
request  to  a  creditor  of  his,  who  knew  that  the  consideration  was 
illegal.^  But  if  the  mortgage  be  given  for  an  illegal  considera- 
tion, and  the  consideration  not  being  performed  the  mortgagee  en- 
ters to  foreclose,  and  keeps  possession  till  foreclosure  is  complete, 
he  then  has  an  absolute  title,  and  the  value  of  the  land  is  applied 
by  operation  of  law  to  the  payment  of  the  debt  secured  by  the 
mortgage.  The  land  is  then  irretrievably  gone,  unless  the  law  be 
such  that  the  illegal  consideration,  when  paid,  can  be  recovered 
back,  not  merely  in  money  but  in  land.  It  has  been  held  that  a 
payment  in  land  for  intoxicating  liquors  illegally  sold  could  not  be 
recovered  back,  and  therefore  that  upon  the  foreclosure  of  a  mort- 
gage for  such  a  debt,  the  land  cannot  be  recovered  by  the  mort- 
gagor.^ 

A  mortgage  by  a  citizen  of  Tennessee,  executed  to  a  citizen  of 
Kentucky  after  the  proclamation  of  the  President  declaring  the 
State  of  Tennessee  to  be  in  a  state  of  insurrection,  and  forbid- 
ding all  intercourse  with  its  inhabitants,  was  held  void,  although 
the  land  was  situate  in  the  State  of  Kentucky.*  A  mortgage  given 
in  Tennessee  during  the  civil  war,  in  consideration  of  a  loan  in 
Confederate  treasury  notes,  was  after  the  war  held  void,  on  the 
ground  that  the  consideration  of  the  contract  was  illegal,  being 
notes  issued  by  an  unlawful  confederation  of  states.  Such  con- 
tracts are  against  public  policy,  and  the  courts  will  not  lend  their 
aid  to  enforce  them.^  But  on  the  contrary,  such  a  mortgage  was 
sustained  in  Alabama,  on  the  ground  that  it  was  valid  under  the 
de  facto  government  existing  when  it  was  executed.^ 

20  Am.  Rep.  1  ;  Andrews  v.  Thayer,  30        2  Bakeri>  Collins,  9  Allen  (Mass.),  253. 
Wis.  228 ;  Walker  v.  Ebert,  29  Wis.  194  ;         »  McLaughlin  i;.  Cosgrove,  99  Mass.  4. 
Fisher  v.  Bcckwith,  30  Wis.  55;  Burson        *  Hyatt  v.  James,  2  Bush  (Ky.),  463. 
r.  Huntington,  21   Mich.  415;  Powell  v.         ^  Stillman  t-.  Looney,  3  Cold.  (Tenn.) 

Conant,  33  Mich.  396.     See  §  87.  20. 

1  Gilbert  v.  Holmes,  64  111.  548.  «  Scheible  v.  Bacho,  41  Ala.  423. 

473 


§§  618,  619.]  VOID    MORTGAGES. 

618.  Contrary  to  public  policy.  —  But  if  land  be  conveyed  to 
one  absolutely  as  security  for  a  sum  of  money  to  be  due  him 
upon  his  doing  an  unlawful  act,  as  for  instance  procuring  wit- 
nesses to  testify  to  a  certain  state  of  facts  in  behalf  of  the  grantor, 
the  transaction  is  not  a  mortgage.  The  title  is  not  divested 
upon  the  grantor's  failure  to  perform  the  illegal  stipulation,  but 
is  absolute  in  him,  and  the  grantor  cannot  recover  it  either  in  law 
or  in  equity.^ 

A  mortgage  executed  in  consideration  that  the  mortgagee 
would  use  his  efforts  to  obtain  a  nolle  prosequi  to  an  indictment 
pending  against  the  mortgagor  is  against  public  policy  and  void.^ 
So  is  one  given  in  composition  of  a  felony,  or  of  a  promise  not  to 
prosecute  for  a  crime  of  lower  degree  than  a  felony.^ 

A  mortgage,  or  a  deed  in  the  nature  of  a  mortgage,  given  to 
secure  the  performance  of  a  contract  contrary  to  the  policy  of  the 
law,  will  not  be  enforced  by  a  court  of  equity  ;  such  for  instance 
is  a  contract  which  is  subject  to  the  objection  of  champerty.* 

A  mortgage  given  upon  lands  held  by  a  settler  under  the  pre- 
emption act,  before  he  has  entered  the  lands  at  the  land  office,  is 
void  under  the  act  of  Congress  forbidding  any  conveyance  before 
such  entry.^ 

619.  Who  may  take  advantage  of  the  illegality.  —  As  a 
general  rule  contracts  prohibited  by  statute  are  void,  and  courts 
will  neither  enforce  them  nor  aid  in  the  recovery  of  money  paid 
in  pursuance  of  them.  "  The  meaning  of  the  familiar  maxim.  In 
pari  delicto  p)otior  est  conditio  defendentis,  is  simply  that  the  law 
leaves  the  parties  exactly  where  they  stand ;  not  that  it  prefers 
the  defendant  to  the  plaintiff,  but  that  it  will  not  recognize  a 
right  of  action,  founded  on  the  illegal  contract,  in  favor  of  either 
party  against  the  other.  They  must  settle  their  own  questions  in 
such  cases  without  the  aid  of  the  courts."^  The  principle  in  such 
cases  is  the  same  in  equity  as  at  law :  while  the  courts  will  not  aid 
the  mortgagee  to  enforce  payment  of  an  illegal  mortgage,  they  will 

1  Patterson  v.  Donner,  48  Cal.  369.  Kas.  249.     Sec,  as  to    mortgage   of  cem- 

'^  Wildey  v.  Collier,  7  Md.  273.  etery  lot,  Lautz  v.  Buckingham,  4  Lans. 

8  Collins  V.  Blantern,  2  Wils.  341,  350 ;  (N.  Y.)  484. 

Atwood  V.  Fiisk,  101  Mass.  363.  '^  Atwood  v.  Fisk,  101   Mass.   363,  per 

*  Gilbert  v.  Holmes,  64  111.  548.  Mr.  Justice  Ames. 
^  See  §  176  ;    Brewster  v.  Madden,  15 
474 


ILLEGAL   CONSIDERATION.  [§  619. 

not  aid  the  mortgagor  to  obtain  a  cancellation  of  the  incum- 
brance. Both  parties  are  left  without  remed}^  when  the  contract 
is  one  that  is  prohibited  as  immoral  or  against  public  policy.^ 
When  the  illegal  consideration  has  been  paid  to  one  of  two  per- 
sons interested  in  it,  the  court  will  not  aid  the  other  to  recover 
his  share  of  it ;  it  does  not  enforce  the  sentiment  of  "  Honor 
among  thieves."  ^  In  the  language  of  Lord  Chief  Justice  Wil- 
mot,^  "You  shall  not  stipulate  for  iniquity ;  all  writers  upon  our 
law  agree  in  this,  no  polluted  hand  shall  touch  the  pure  founda- 
tions of  justice;  whoever  is  a  party  to  an  unlawful  contract,  if 
he  hath  once  paid  the  money  stipulated  to  be  paid  in  pursuance 
thereof,  he  shall  not  have  the  help  of  a  court  to  fetch  it  back 
again  ;  you  shall  not  have  a  right  of  action  when  you  come  into  a 
court  of  justice  in  this  unclean  manner  to  recover  it  back.  Procul 
01  procul  este  jJrofani." 

Gaming  contracts,  contracts  made  on  the  Sabbath,  contracts  of 
champerty  and  maintenance,  contracts  made  in  composition  of 
felony,  and  many  others  of  like  nature,  might  be  mentioned  as 
examples.  "  But  sometimes  contracts  are  prohibited  for  the 
mere  protection  of  one  of  the  parties  against  an  undue  advantage 
which  the  other  party  is  supposed  to  possess  over  him.  In  such 
cases  the  parties  are  not  regarded  as  being  equally  guilty,  and  so 
the  rule  is  not  deemed  applicable,  though  both  have  violated  the 
law.*  As  an  example  of  kind,  a  usurious  contract  is  mentioned, 
which  may  be  void  as  to  the  mortgagee  while  valid  as  to  the 
mortgagor. 

In  accordance  with  this  distinction,  a  law  providing  that  school 
funds  shall  be  loaned  only  upon  unincumbered  real  estate  does 
not  render  void  a  mortgage  taken  in  violation  of  this  statute,  by 
the  officer  charged  with  making  the  loan.  The  mortgagor  cannot 
claim  that  such  a  mortsrao-e  is  illegal  and  cannot  be  enforced 
against  him.^ 

A  statute  providing  that  a  trustee,  before  entering  upon  the  dis- 
charge of  his  duties,  shall  give  a  bond  for  the  faithful  discharge  of 

1  James  v.  Roberts,  18  Ohio,  548.  important  element  in  this  case  was  that 

2  "Woociworth  I".  Bennett,  43  N.  Y.  273.  llaguct  not  only  agreed  not  to  jirosecute, 

3  Collins  I'.  Blantern,  2  Wils.  341,  350.  but  agreed  to  use  his  influence  to  prevent  a 
*  Deming  v.   State,  23  Ind.  416.     See  proscution. 

Raguet  V.  Roll,  7  Ohio,  77;    S.  C.  4  lb.         ^  Deming   v.   State,   supra.     And    see 
419  ;  Cowles  v.  Raguet,  14  Ohio,  38.     An     Mann  v.  Best,  62  Mo.  491. 

475 


§§  620,  621.]  VOID   MORTGAGES. 

his  duties,  does  not  prevent  the  legal  estate  vesting  in  him  under 
a  mortgage  or  deed  of  trust  regularly  executed.^ 

620.  When  the  illegal  consideration  can  be  separated.  — 
When  the  consideration  of  a  mortgage  is  made  up  of  several  dis- 
tinct transactions,  some  of  which  are  legal  and  others  are  not,  and 
the  one  can  be  separated  with  certainty  from  the  other,  the  mort- 
gage may  be  upheld  for  such  part  of  the  consideration  as  was 
free  from  the  taint  of  illegality .^  In  equity  a  mortgage  securing 
a  debt  usurious  in  part,  but  valid  in  part,  may  be  upheld  for  the 
latter,  although  in  terms  the  statute  of  usury  makes  the  obliga- 
tion void  altogether.  Thus,  where  the  maker  of  such  a  mortgage 
comes  into  equity,  and  asks- that  such  a  mortgage  be  surrendered 
as  a  cloud  on  the  title  to  his  lands,  and  that  the  court  will  so 
direct,  although  it  cannot  require  him  to  pay  the  usurious  debt, 
or  any  part  of  it,  it  may  require  him  to  pay  the  other  part  of  it 
which  at  law  and  in  equity  he  owes.  The  court  will  require  him 
to  do  equity  before  it  will  administer  the  relief  asked  for.^ 

A  mortgage  fraudulently  made  to  include  a  sum  not  due  or 
which  had  been  paid  is  absolutely  void.  But  if  the  sum  secured 
be  made  up  in  part  of  a  sum  inadvertently  included  and  without 
fraudulent  intent,  then  the  mortgage  may  be  valid  for  the  actual 
debt  secured,  and  void  as  to  the  rest.* 

When  part  of  the  consideration  of  a  note  and  mortgage  is  the 
suppression  of  a  criminal  prosecution  against  the  mortgagor,  he 
can  avail  himself  of  this  fact  as  a  defence  to  a  suit  to  enforce 
either  of  them,  although  the  prosecution  is  for  an  embezzlement  of 
funds,  by  which  the  mortgagor  not  only  comitted  a  crime  but  in- 
curred a  debt.  The  effect  upon  the  mortgage  in  such  case  is  the 
same  as  if  the  whole  consideration  had  been  illegal.  The  illegal 
part  cannot  be  separated  from  the  legal,  but  the  illegality  taints 
the  whole.^ 

621.  A  mortgage  may  be  valid  in  part  and  void  jn  part.^  — 

1  Gardner  v.  Brown,  21  Wall.  36.  s  "Williams  v.  Fitzhugh,  37  N.  Y.  444. 

2  Feldman   v.    Gamble,    26   N.   J.   Eq.         *  Warden  v.  Hawes,  10  Conn.  50. 
494;  Williams  v.  Fitzhugh,  37  N.  Y.  444,         ^  Atwood  v.  Fisk,  101  Mass.  363,  366, 
applied  to  usury  ;    McCravey  v.  Alden,  46  per  Ames,  J. 

Barb.  (N.   Y.)  272;  Cook  v.   Barnes,  36  ^  Leeds  i-.  Cameron,  3  Sum.  488 ;  John- 

N.  Y.  520;  and  see  Carleton  v.  Woods,  28  son  v.   Richardson,  38  N.  H.  353;  Rood 

N.  H.  290.  V.   Winslow,  2  Dougl.  (Mich.)  68;    S.  C. 
476 


MORTGAGES   EXECUTED   ON   SUNDAY.  [§§  622,  623. 

A  mortgage  of  land  and  slaves,  executed  while  slavery  was  recog- 
nized, was  vitiated  by  the  abolition  of  slavery  only  as  to  the  lien 
upon  the  slaves.^ 

Where  a  bond  of  defeasance  was  assigned  by  a  debtor  to  a 
creditor,  who  paid  the  debt  to  secure  which  the  conveyance  was 
made,  whereupon  the  land  was  conveyed  to  him,  and  he  gave  the 
debtor  a  new  bond  conditioned  for  the  reconveyance  of  the  land 
upon  the  payment  of  the  amount  of  both  debts,  the  transaction, 
so  far  as  the  debt  of  the  second  creditor  was  secured,  was  void 
under  the  insolvent  laws ;  but  the  conveyance  being  a  valid  se- 
curity for  the  first  debt,  the  land  was  a  valid  security  in  the  hands 
of  the  second  creditor  for  the  amount  paid  by  him  to  the  first 
creditor.^ 

A  mortgage  given  by  a  third  person  at  the  solicitation  of  an- 
other to  secure  his  debt  for  a  specific  purpose,  as  for  instance  the 
purchase  price  of  certain  goods  about  to  be  sold  him,  if  fraudu- 
lently made  to  cover  in  part  an  existing  indebtedness,  is  void  as 
to  such  part  of  it,  though  valid  as  to  the  part  used  for  the  pur- 
pose intended.  Although  the  mortgagee  has  taken  such  mortgage 
in  good  faith,  if  he  has  not  put  himself  in  any  worse  position  in  re- 
gard to  the  old  indebtedness,  if  he  has  not  done  anything  or  parted 
with  anything  in  reliance  upon  the  mortgage,  he  cannot  claim  that 
the  surety  should  suffer  for  the  fraud  by  reason  of  negligence  in 
executing  the  mortgage  which  rendered  the  fraud  possible.^ 

622.  The  burden  of  proof  is  upon  the  party  who  sets  up  the 
defence  of  the  want  of  consideration  or  the  illegality  of  it,  to  make 
it  out  by  clear  and  strong  proof."^  A  mortgage  in  due  form  and 
duly  executed  implies  a  valid  consideration. 

Evidence  of  the  payment  of  interest  upon  a  mortgage  is  admis- 
sible to  show  its  validity  when  this  is  disputed.^ 

3.  Mortgages  executed  on  Sunday. 

623.  Mortgage  for  debt  contracted  on  Sunday.  —  The  stat- 
utes forbidding  the  transaction  of  business  on  Sunday  have  the 

Walk.  340;  M'Murray  v.  Connor,  2  Al-  ^  Smith  v.  Osboin,  33  Mich.  410. 

len  (Mass.),  205.  *  Stuart  w.  Phelps,  39  Iowa,  14;  Feld- 

1  Lavillebeuvrc  v.  Frederic,  20  La.  Ann.  man  v.  Gamble,  26  N.  J.  Eq.  494 ;  Brig- 
374.  ham  v.  Potter,  14  Gray  (Mass.),  522. 

2  Judd  V.  Flint,  4  Gray  (Mass.),  557.  °  Floyd  Co.  v.  Morrison,  40  Iowa,  188. 

477 


§  623.]  VOID  MORTGAGES. 

effect  to  render  void  all  contracts  executed  upon  that  day.^  It  has 
sometimes  been  said  that  such  contracts,  being  immoral  and  ille- 
gal only  as  to  the  time  they  are  entered  into,  may  be  affirmed 
upon  a  subsequent  day,  and  thus  made  valid.^  But  it  seems  in- 
correct to  say  that  a  mere  ratification  can  impart  legal  efficacy  to  a 
contract  which  has  no  legal  existence,^  The  logical  theory  would 
seem  to  be  that  nothing  but  an  express  promise,  subsequently  made, 
founded  upon  the  consideration  emanating  from  the  illegal  con- 
tract, will  avail  to  support  an  action  having  that  consideration  for 
its  basis.  Upon  this  theory  it  was  held  that  althougli  a  promissory 
note  made  and  delivered  on  Sunday  for  a  loan  of  money  made  at 
the  time  is  illegal  and  cannot  be  enforced,  j^et  the  obligation  to 
return  the  money  is  a  sufficient  consideration  to  support  a  mort- 
gage subsequently  given  to  secure  it.  The  mortgage  constitutes 
a  new  promise  founded  on  such  obligation,  and  having  no  taint  of 
illegality,  such  as  the  note  had,  it  may  be  enforced.^ 

When  a  deed  of  land  was  executed  and  delivered  on  Sunday, 
to  indemnify  the  mortgagee,  and  under  an  oral  agreement  that 
he  should  hold  the  land  in  trust  for  the  mortgagor  after  satisfy- 
ing his  claim,  in  accordance  with  which  agreement  a  declaration 
of  trust  was  afterwards  executed,  it  was  held  that  the  fact  that 
the  deed  was  executed  and  delivered  on  Sunday  did  not  entitle 
the  grantee  to  hold  the  land  discharged  of  the  trust.^  The  rule, 
that  no  action  based  on  a  contract  made  on  Sunday  can  be  main- 
tained to  enforce  its  obligations  in  favor  of  either  party,  cannot 
be  so  applied  as  to  enlarge  the  interest  conveyed  by  the  grantor, 
or  to  defeat  his  equitable  title.     "  The  apparent  title  conveyed," 

1  Under  the  Massachusetts  statute  of  which  the  law  has  dechired  illegal.  It 
1791,  prohibiting  the  doing  of  any  man-  is  competent  to  them  to  impart  new  effi- 
ner  of  labor,  business,  or  work,  between  cacy  to  a  voidable  act,  but  they  have  no 
the  midnight  preceding  and  the  sunset  of  power  to  give  life  to  an  act,  which,  from 
the  Lord's  day,  and  declaring  void  the  ex-  reasons  of  public  policy,  has  been  ordained 
eculion  of  any  civil  process  from  the  raid-  by  the  legislative  authority  to  be  abso- 
night  preceding  to  the  midnight  following  lutely  void."  Per  Chief  .Justice  Beasley,  in 
that  day,  it  was  held  that  a  mortgage  exe-  Reeves  v.  Butcher,  31  N.  J.  L.  224. 
cuted,  acknowledged,  and  recorded,  after  *  Gwinn  v.  Simes,  61  Mo.  335.  In 
sunset  on  Sunday  evening,  was  not  void.  Harrison  v.  Colton,  31  Iowa,  16,  it  is  held 
Tracy  v.  Jenks,  15  Pick.  (Mass.)  465.  that  a  contract  made  on   Sunday  may  be 

2  Adams  v.  Gay,  19  Vt.  358,  per  Red-  afterwards  ratified.  See  Heller  v.  Craw- 
field,  J.     See  Tucker  v.  West,.29  Ark.  386,  ford,  37  Ind.  279. 

for  a  review  of  the  Sunday  laws  of  many  ^  Faxon  v.  Folvey,  110  Mass.  392.  See 
of  the  states.  Hall  v.  Corcoran,  107  Mass.  251,  and  cases 

3  "  The    parties    cannot    legalize    that    cited.     Myers  v.  Meinrath,  101  Mass.  366. 

478 


FRAUDULENT  MORTGAGES.  [§  624. 

says  Mr.  Justice  Colt,  "  was  qualified  by  the  trust  imposed  upon 
it,  as  effectually  as  if  the  terms  of  the  trust  were  contained  in 
the  deed  itself.  Neither  party  to  the  transaction,  or  those  claim- 
ing under  them,  can  be  permitted  to  take  advantage  of  the  al- 
leged illegal  act.  The  title,  such  as  it  was,  passed  to  the  grantee, 
and  was  held,  as  we  have  found,  in  trust.  The  purpose  of  the 
trust  declared  was  neither  immoral,  contrary  to  the  statutes,  or 
contrary  to  public  policy  ;  the  only  illegality  ehai-ged  is  in  the 
time  when,  by  the  conveyance  and  agreement,  the  trust  was  cre- 
ated. Under  such  circumstances  the  law  does  not  interfere  to 
undo  what  the  parties  have  done,  by  setting  aside  their  deeds. 
Neither  party  can  now  assert  rights  inconsistent  with  the  con- 
veyances." 

4.  Fraudulent  Mortgages. 

624.  A  mortgage  obtained  by  fraud  is  void,  and  a  discharge 
of  it  may  be  decreed  in  equity. ^ 

When  a  deed  of  land  has  been  procured  by  fraud,  and  the 
grantee  has  conveyed  it  to  a  purchaser  in  good  faith,  so  that  the 
land  itself  is  beyond  the  reach  of  the  grantor,  yet,  if  such  pur- 
chaser has  given  a  mortgage  for  a  portion  of  the  purchase  money 
to  a  party  who  fraudulently  obtained  the  deed,  he  may  in  equity 
be  compelled  to  transfer  the  mortgage  to  the  party  defrauded.  It 
is  an  established  doctrine,  that  when  the  legal  estate  has  been 
acquired  by  fraud,  the  taker  may  in  equity  be  regarded  as  trus- 
tee of  the  party  defrauded,  who  may  recover  the  estate  or  its 
avails  when  these  can  be  distinctly  identified.^  A  bill  to  set  aside 
a  mortgage  procured  by  fraud  may  be  filed  b}^  one  of  several  mort- 
gagors, who  have  secured  the  several  notes  of  each  by  a  joint 
mortgage  of  one  tract  of  land.-^  It  is  fraud  in  a  creditor  to.  in- 
duce his  debtor  to  secure  an  old  debt  by  mortgage  upon  the  con- 
dition of  advancing  a  further  sum,  and  when  he  has  obtained 
the  security  to  refuse  to  make  the  advance,  and  a  court  of  equity 
will  annul  the  conveyance.  In  such  case  the  mortgagee  cannot 
claim  that  there  is  no  loss,  and  that  therefore  the  mortgage  is 
damnum  absque  injuria.  The  mere  existence  of  the  mortgage  is 
itself  an  injury,  and  an  action  to  enforce  it  a  greater.^ 

1  Mason  v.  Daly,  117  Mass.  403 ;  War-  2  Cheney  v.  Glcason,  117  Mass.  557.    * 

temberg   v.  Spiegel,  31    Mich.   400;   and  »  Moulton  u.  Lowe,  32  Me.  466. 

see  Richardson  v.  Barrick,  16  Iowa,  407  ;  *  Gross  v.  McKee,  53  Miss.  536. 
Terry  i'.  Tuttle,  24  Mich.  206. 

479 


§§  625,  626.]  VOID  mortgages. 

The  fact  that  the  mortgagor  is  in  possession,  and  can  maintain 
his  possession  against  the  mortgagee  at  law,  does  not  prevent 
his  maintaining  a  bill  in  equity  to  set  aside  a  fraudulent  mort- 
gage.^ 

625.  A  fraudulent  intent  on  the  part  of  the  mortgagee 
in  obtaining  the  mortgage  must  be  shown  to  render  it  void.^  To 
have  this  effect,  it  is  necessary  that  there  should  be  something 
more  than  mere  folly  on  the  part  of  the  mortgagor.  A  mort- 
gagee may  meet  an  allegation  that  a  mortgage  was  obtained 
through  his  false  and  fraudulent  representations,  by  evidence  that 
the  mortgagor  executed  the  mortgage  without  his  solicitation. 
The  weight  to  be  given  to  the  evidence  is  a  question  for  the  jury.^ 
A  fraudulent  misrepresentation  as  to  the  value  of  property  sold 
by  the  mortgagee,  in  payment  of  which  he  has  taken  a  mortgage, 
does  not  avoid  the  mortgage  if  there  was  any  value  at  all  in  the 
property  sold.  The  property  which  was  the  subject  of  the  sale 
and  mortgage  must  fiist  be  restored  to  the  vendor,  or  a  recon- 
veyance tendered,  before  the  mortgage  can  be  rescinded.* 

The  representation  of  a  mortgagee,  that  he  would  not  enforce 
the  mortgage,  is  no  defence  to  it,  because  such  a  parol  promise 
cannot  be  offered  in  evidence.^ 

626.  A  mortgage  obtained  by  duress  is  void.  —  A  mortgage 
obtained  through  threats  of  a  groundless  prosecution  is  void,  and 
a  court  of  chancery  will  restrain  its  collection.^  It  is  even  held 
that  a  mortgage  obtained  from  a  married  woman  by  duress  on 
the  part  of  the  husband  is  void,  although  the  mortgagee  took  no 
part  in  procuring  it,  on  the  ground  that  he  allowed  the  husband 
to  act  as  his  agent,  and  is  bound  by  his  acts.'^  A  mortgage  given 
under  threats  by  the  creditor  of  a  criminal  prosecution  for  a 
felony,  unless  the  debt  be  secured,  is  not  void,  if  the  debt  was 
actually  due,  and  the  debtor  was  in  duty  bound  to  pay  or  secure 
it.  The  giving  of  the  mortgage  in  such  case  is  not  the  compound- 
ing of  a  felony.^     But  if  a  mortgage  be  given  without  considera- 

1  Marston  v.  Brackett,  9  N.  H.  336.  ^  James  v.  Roberts,  18  Ohio,  548;  Ejs- 

2  See    chapter  xxxii.    division   3,  and     ter   v.    Hatheway,    50   111.    521  ;    and   see 
chapter  xxix.  division  5.  Lightfoot  v.  Wallis,  12  Bush  (Ky.),  498. 

8  Blackvvell  y.  Cummings,  68  N.  C.  121.  ">  Central  Bank  of  Frederick  v.  Cope- 

*  Sanborn  v.  Osgood,  16  N.  H.  112.  land,  18  Md.  305. 

6  Catlin  V.  Fletcher,  9  Minn.  85.  ^  pjant  v.  Gunn,  2  Woods,  372. 
480 


FRAUDULENT  MORTGAGES.  [§  G27. 

tion  under  threats  of  a  groundless  prosecution,  a  court  of  equity 
will  grant  relief  and  restrain  the  collection  of  it.^ 

To  avoid  a  mortgage  on  account  of  duress  by  imprisonment, 
it  must  appear  that  the  imprisonment  was  unlawful,  and  that  it 
was  executed  in  order  to  obtain  a  release  from  it.  "  If  I  be  ar- 
rested upon  good  cause,  and  being  in  prison,  or  under  arrest,  I 
make  an  obligation,  feoffment,  or  any  other  deed  to  him  at  wliosa 
suit  I  am  arrested,  for  my  enlargement,  and  to  make  him  satis- 
faction, this  shall  not  be  said  to  be  by  duress,  but  is  good,  and 
shall  bind  me."  ^ 

A  mortgage  given  to  a  county  to  secure  the  payment  of  a  sum 
of  money,  as  the  condition  of  a  pardon,  is  not  void  as  being  given 
under  duress.'^ 

A  mortgage  given  for  a  legal  debt,  but  with  the  motive  not  to 
incur  the  risk  of  offending  a  wealthy  and  influential  friend,  who 
might  prove  highly  serviceable  to  the  mortgagor  and  his  family, 
is  not  given  under  duress.'* 

627.  Mortgages  made  to  defraud  creditors.  —  Except  under 
bankrupt  and  insolvent  laws,  a  mortgage  made  with  the  intent  to 
prefer  one  creditor  to  another  is  valid,^  although  a  mortgage  made 
with  the  intent  upon  the  part  of  the  mortgagor  to  hinder,  delay 
and  defraud  his  creditors  is  void  at  common  law  and  by  statute, 
generally,  except  in  case  the  mortgagee  did  not  participate  in  or 
have  knowledge  of  such  intent.^  Such  mortgage  can  be  declared 
void  as  to  him  only  upon  proof  of  his  knowledge  of  the  fraudu- 
lent intent."  It  is  incumbent  upon  the  mortgagee  to  show  that 
the  mortgage  was  made  for  a  valuable  and  adequate  consideration  ; 
and  when  that  appears,  the  burden  of  proving  a  fraudulent  intent 
on  his  part  rests  with  the  creditors  who  assail  the  transaction. 
Proof  of  the  embarrassed  condition  of  the  mortgagor  at  the  time, 
and  of  the  mortgagee's  relationship  to  him,  is  insufficient  to  estab- 
lish a  fraudulent  intent ;  ^  as  is  also  the  fact  that  the  mortgagor 

1  James  v.  Roberts,  18  Ohio,  548.  See  *  Dolman  v.  Cook,  14  N.  J.  Eq.  56. 
Raguet  V.  Roll,  7  Ohio,  77;  Cowles  v.  ^  Giddings  f.  Scars,  115  Mass.  505. 
Ragiiet,  14  Ohio,  38.  ''  Price  v.  Masterson,  35  Ala.  483. 

2  I  Shep.  Touch.  62 ;  and  see  Watkins  v.  '  Hall  v.  Hcydon,  41  Ala.  242 ;  Tickner 
Baird,  6  Mass.  506 ;  Plant  v.  Gunn,  2  v.  Wiswall,  9  Ala.  305 ;  Wiley  v.  Knight, 
Woods,  372.  27  Ala.  336. 

3  Rood  V.  Winslow,  2  Doug.  (Mich.)  «  Troy  f.  Smith,  33  Ala.  469  ;  Banfield 
68.  V.  Whijjple,  14  Allen  (Mass.),  13. 

VOL.  I.  31  481 


§  628.]  VOID   MORTGAGES. 

immediately  afterwards  executed  a  general  assignment  in  favor  of 
his  creditors.^  When  the  object  of  a  mortgage  is  solely  to  secure 
a  debt  to  the  mortgagee,  it  is  not  fraudulent  at  common  law,  al- 
though both  the  debtor  and  creditor  knew  that  the  effect  of  it 
would  be  to  put  the  property  out  of  the  reach  of  other  creditors.^ 

If  one  of  the  purposes  of  making  a  mortgage  was  to  put  the 
property  out  of  the  reach  of  the  mortgagor's  creditors,  although 
the  principal  purpose  of  the  parties  was  to  secure  a  bond  fide  debt 
of  the  mortgagor,  it  is  nevertheless  void  as  to  his  creditors.^ 

The  circumstance  that  a  mortgage  is  made  in  the  form  of  an 
absolute  conveyance  by  a  debtor,  in  failing  circumstances,  to  a 
creditor,  is  no  evidence  of  an  intention  to  defraud  other  creditors.* 
Neither  is  a  mortgage  fraudulent  as  to  creditors,  because  it  is 
given  for  a  greater  sura  than  is  due,  but  in  fact  to  cover,  in  part, 
future  advances,  although  it  does  not  express  upon  its  face  that 
the  excess  is  for  future  advances.^  It  would  be  fraudulent,  how- 
ever, if  not  given  in  good  faith,  and  the  securing  of  future  ad- 
vances be  only  a  pretence.^ 

If  given  to  secure  existing  liabilities,  it  is  not  void  as  to  credit- 
ors, because  it  does  not  specify  the  amount  secured  ; "  nor  because 
the  sum  secured  was  made  up  in  part  by  an  allowance  of  interest 
not  recoverable  at  law  upon  the  debt,^  or  that  it  includes  debts 
due  to  other  persons  which  the  mortgagee  verbally  promises  to 
pay.9 

628.  A  mortgage  may  be  fraudulent  with  reference  to  a 
particular  creditor  of  the  mortgagor,  as  for  instance  against  a 
mechanic,  who  was  induced  to  delay  the  signing  of  a  contract  for 
the  building  of  certain  houses  until  the  landowner  had  executed 
and  recorded  a  mortgage  without  consideration  to  a  third  person, 
with  the  intention  that  the  mortgagee  should  enter  under  it,  and 
defeat  the  lien  of  the  mechanic.  The  mechanic  in  such  case  is 
entitled  to  maintain  a  bill  to  restrain  an  assignment  of  the  mort- 

1  Lyon    V.    Mcllvaine,    24     Iowa,     9  ;  5  Tully  v.  Harloe,  35  Cal.  302. 

Lampson  v.  Arnold,  19  lb.  479.  ^  Tully  v.  Harloe,  supra. 

'-  Giddings  i}.  Sears,  115  Mass.  505.  '^  Youngs  v.  Wilson,  27  N.  Y.  351,  re- 

3  Crowuinshield   v.  Kittridge,    7    Met.  versing  S.  C.  24  Barb.  510. 

(Mass.)  520;  Robinson  v.  Stewart,  10  N.  »  Spencer  v.  Ayrault,  10  N.  Y.  202. 

Y.  189.  9  Carpenter  v.  Muren,  42  Barb.  (N.  Y.) 

*  Doswell  V.   Adler,    28   Ark.    82,  and  300. 
cases  cited. 

482 


FRAUDULENT   MORTGAGES.  [§§  629,  630. 

gage,  and  to  compel  its  cancellation,  even  before  the  houses  are 
completed  and  the  money  under  the  contract  has  become  due. 
The  priority  of  lien  to  which  the  mechanic  is  entitled  may  be 
secured  to  hirn  beforehand,  inasmuch  as  his  security  is  impaired 
by  the  fraudulent  mortgage,  and  he  is  exposed  to  the  chance  that 
the  mortgage  may  pass  into  the  hands  of  a  bond  fide  assignee  for 
vakie.^ 

629.  Fraudulent  preferences.  —  A  mortgage  given  to  secure 
a  debt  to  a  creditor,  who  has,  with  others,  executed  a  composition 
with  a  debtor  to  accept  a  portion  of  their  claims  in  satisfaction, 
under  a  secret  arrangement  whereby  the  debt  of  such  creditor  is 
to  be  paid  in  full,  is  a  fraud  upon  the  other  creditors,  and  is  void.^ 

A  mortgage  made  with  the  intent  to  prefer  contrary  to  law  is 
void  against  the  assignee  in  insolvency  or  bankruptcy  of  the  mort- 
gage, although  the  property  be  a  homestead,  and  exempted  from 
execution. 3 

Though  a  mortgage  be  fraudulent  and  void  as  to  a  creditor,  the 
mortgagor  cannot  avoid  it.^  Such  a  mortgage  conveys  the  prop- 
erty, and  is  binding  between  the  parties.^  Although  the  mort- 
gagee has  participated  in  the  fraudulent  intent,  it  is  voidable  only 
at  the  election  of  the  creditors.  If  they  do  not  intervene  the  con- 
veyance stands.®  The  mortgagor  will  not  be  heard  to  allege  his 
own  fraud.'^ 

630.  Who  may  take  advantage  of  the  fraud.  —  A  creditor 
of  the  mortgagor,  after  levying  execution  on  the  equity  of  re- 
demption and  purchasing  it  at  the  sheriff's  sale,  may  prove  that 
a  second  mortgage,  or  a  release  of  the  equity  to  the  second  mort- 
gagee by  the  mortgagor,  is  fraudulent  and  void  by  reason  of  fraud 
practised  on  the  mortgagor,  although  the  mortgagor  himself  has 
made  no  attempt  to  avoid  it.^     So  may  a  purchaser  of  the  equity 

1  Ilulsman  v.  Whitman,  109  Mass.  Conn.  20;  Salmon  v.  Bennett,  1  Conn. 
411.  525. 

-  Feldman  v.  Gamble,  26  N.  J.  Eq.  494,        &  Parkhurst  v.  McGraw,  24  Miss.  1.34. 
and  cases  cited;  Lawrence  v.  Clark,  36  N.         ^  IJarvey  v.  Varney,  98  Mass,  118,  and 
y.  128.  cases  cited;   Upton  v.  Craig,  57  111.  257. 

3  Beals  V.  Clark,  1.3  Gray  (Mass.),  18.  "  Per  Shaw,  C.  J.,  in  Dyer  v.  Homer, 

*  See  §  626;  Stores  v.    Snow,  I  Hoot    22  Pick.  (Mass.)  253. 
(Conn.),  181;    see    Abbe   v.  Newton,    19        "  Van  Deusen  y.  Frink,  15  Pick.  (Mass.) 

449. 

483 


§  631.] 


VOID   MORTGAGES. 


of    redemption,   upon    execution  sale,    maintain   an  action  to   set 
aside  a  deed  on  account  of  fraud. ^ 

631.  When  the  mortgagor  is  estopped  to  claim  invalidity. 
A  mortgagor  is  not  estopped  from  setting  up  the  invalidity  of 
his  mortgage,  unless  there  has  been  some  fraud,  misrepresenta- 
tion, or  concealment  on  his  part.^  But  he  is  estopped  from  setting 
up  any  defence  which  is  inconsistent  with  representations  made 
by  him  in  obtaining  the  loan,  which  the  mortgage  was  given  to 
secure,  when  the  lender  has  relied  upon  these  representations  in 
making  the  loan  and  taking  the  mortgage.  Thus,  if  a  mortgagor 
induce  a  person  to  purchase  the  mortgage  by  a  statement  or  cer- 
tificate that  a  certain  sum  is  due  upon  it,  and  that  there  is  no 
offset  or  defence  to  it,  the  borrower  is  precluded  from  claiming 
that  this  sum  is  not  the  true  amount  due,  or  that  the  mortgage  is 
void,  either  wholly  or  in  part,  for  usury.-'^  But  if  the  purchaser  of 
the  security  did  not  believe  the  existence  of  the  facts  in  reference 
to  which  the  estoppel  is  sought  to  be  interposed,  and  did  not  act 
upon  any  such  belief,  the  mortgagor  is  not  estopped  to  show  the 
real  facts  of  the  case.*  To  create  a  valid  estoppel,  the  holder  of 
the  mortgage  must  have  purchased  in  reliance  upon  the  truth  of 
the  representations.  Therefore,  where  a  mottgage  and  a  certificate 
accompanying  it  that  the  mortgage  was  given  "  for  a  good  and 
valid  consideration  to  the  full  amount  thereof,  and  that  the  same 
is  subject  to  no  offset  or  defence  whatever,"  were  both  procured 
by  fraud,  and  the  purchaser  did  not  rely  upon  the  truth  of  the 
certificate,  but  upon  the  effect  of  it,  as  a  matter  of  law,  to  protect 
him,  it  was  held  that  the  mortgagor  could  still  set  up  the  fraud 
in  defence  to  the  mortgage.^ 

1  Matson  v.  Capelle,  62  Mo.  23.5.  *  Eitcl  v.  Bracken,  supra  ;  Van  Sickle  v. 

2  Brewster  v.  Madden,  15  Kans.  249.  Palmer,  2  T.  &  C.  (N.  Y.)  612;  Wilcox  r. 
See  Wilson  v.  Watts,  9  Md.  356.  Howell,  44  N.  Y.  398. 

3  Lei-ley  v.  Johnson,  41  Barb.  (N.  Y.)  5  Eitel  v.  Bracken,  supra,  per  Curtis  J. 
359  ;  Eitel  v.  Bracken,  38  Superior  Ct.  (N.  "  It  is  contrary  to  good  morals,  that  a  cer- 
Y.)  7.  "It  is  a  wise  and  just  restriction,  tificate  containing  an  unadulterated  falso- 
that  if  a  mortgagor  makes  a  false  state-  hood,  and  known  to  both  the  maker  and 
ment,  orally  or  in  writing,  to  influence  recipient  to  be  simply  such,  should  be  sus- 
the  purchase  of  the  security,  he  cannot  tained  as  sufficient  to  protect  the  latter 
take  advantage  of  it  as  against  an  inno-  in  the  purchase  of  a  mortgage,  because 
cent  purchaser.  The  law  adjudges  him  he  believed  it  would  so  protect  him  as  a 
to  be  estopped  from  profiting  by  his  own  matter  of  law,  and  would  not  have  bought 
fraud."     Per  Curtis,  J.  the  mortgage  without  it." 

484 


FRAUDULENT  MORTGAGES.  [§  632. 

A  mortgage  made  to  aid  an  officer  in  the  settlement  of  his 
official  accounts  by  making  up  a  deficiency,  and  used  for  tliat  pur- 
pose, cannot  afterwards  be  repudiated  by  the  maker  as  invalid. 
He  cannot  complain  that  after  having  accomplished  its  purpose 
by  being  used  as  evidence  of  a  loan  with  his  consent,  it  is  held  to 
be  a  valid  obligation.^  He  is  estopped,  too,  from  denying  the 
official  character  of  the  grantee,  as  a  commissioner  of  the  school 
fund,  although  the  office  had  been  abolished.  The  mortgage  being 
intended  as  a  security  for  the  school  fund,  it  will  be  given  the 
effect  intended  by  the  parties;  and  the  maker  will  not  be  allowed 
to  deny' its  recitals.^ 

632.  Estoppel  to  claim  the  mortgage  was  made  to  defraud 
creditor. —  A  mortgagor  is  not  allowed  to  invalidate  his  own  deed 
by  showing  that  it  Avas  executed  by  him  for  the  purpose  of  de- 
frauding his  creditors.  A  court  of  equity  will  not  lend  its  aid  to 
relieve  the  mortgagor  from  the  consequences  of  his  own  fraudu- 
lent act,  nor  will  it  aid  the  mortgagee  in  securing  him  in  the 
enjoyment  of  the  property,  where  its  interposition  is  necessary  for 
that  purpose.  The  mortgagee  is  left  to  his  legal  remedies,  which 
will  enable  him,  when  invested  with  the  legal  title,  to  recover  the 
possession  of  the  mortgaged  property.  So  far  as  the  contract  is 
executory,  he  is  without  remedy,  either  legal  or  equitable.^ 

A  defence  to  the  enforcement  of  a  mortgage  for  the  want  of 
consideration  cannot  be  met  b}^  evidence  that  the  mortgage  was 
given  with  a  view  to  defraud  the  creditors  of  the  morlgngor. 
"  The  general  rule  of  policy  is.  In  i^ari  delicto  potior  est  conditio 
defendentis.  If  there  was  an  intent  to  defraud  creditors,  it  was 
an  intent  common  to  both  parties,  affecting  as  Avell  the  plaintiff's 
intestate  as  the  defendant.  It  is  the  plaintiff  who  is  the  actor,  and 
is  seeking  to  enforce  the  payment  of  these  notes.  It  may  well  be 
held,  that  the  defendant  would  not  be  permitted  to  show  that 
the  notes  were  made  to  delay  and  defeat  creditors  as  a  substantive 
ground  of  defence,  on  the  Avell  known  maxim,  Neino  alhgans 
suam  turpitudinem  audiendus  sit ;  and  therefore  if  a  legal  consid- 
eration were  shown,  such  a  defence  could  not  avail.  But  inde- 
pendently of  this  ground,  he  shows  want  of  consideration,  and  it 
is  the  demandant  who  seeks  to  rebut  that  defence,  by  showing 

1  Floyd  Co.  V.  Morrison,  40  Iowa,  188.      »  Brookover  v.  Hurst,  1  Met.  (Ky.J  665. 
'^  Flovd  Co.  V.  Morrison,  supra. 

485 


§  633.] 


USURY. 


that  the  notes  were  given  as  well  to  defeat  creditors  as  without 
consideration."  ^ 

PART  II. 


USUUY. 


1.    What  Mortgages  are    Usurious. 

633.  Usury  laws  apply  to  mortgages  in  the  same  manner  that 
they  apply  to  contracts  in  general,  and  the  same  principles  of 
law  are  applicable  to  the  inquiry,  whether  they  are  usurious  or 
not.  The  subject  of  usury  is  of  less  importance  now  than  it  was 
formo'ly,  for  the  reason  that  within  a  few  years  the  usury  laws 
have  been  repealed  in  several  states,  and  in  others  they  have  been 
greatly  modified,  so  that  only  in  a  few  states  does  usury  now  in- 
validate a  contract.  A  brief  statement  of  the  laws  of  the  several 
states  with  reference  to  interest  and  usury  is  given  in  a  note ; 
but  it  is  to  be  borne  in  mind  that  these  laws  are  at  present  sub- 
ject to  frequent  changes.^ 

1  Wcarse   v.   Peircc,  24   Pick.    (Mass.)     double  the  loan.     In  tliat  state,  and  also 


141,  per  Shaw,  C.  J. 

^  It  a.pi)cars  that  in  the  states  of  Maine, 
Massacliiisetts,  Rhode  Island,  South  Car- 
olina, Florida,  California,  Nevada,  and  in 
the   Territories  of  Utah,   Arizona,   Mon- 


in  Tennessee,  usury   is   punishahle   as   a 
misdemeanor. 

Alabama.  —  The  rate  is  eight  per  cent, 
per  annum.  Usury  forfeits  the  interest, 
but  the  principal  may  be  recovered.     Rev. 


tana,  New  Mexico,  Wyoming,  and  Wash-  Code,  1867,  §§  1827,  18-31,  2781. 

ington,  there  are  no  usury  laws,  and  the  Arizona  Tkreitory. —  Ten  percent. 

parties  may  contract  in  writing  for  any  is  the  legal  rate  when  there  is  no  express 

rate  of  interest;  that  in  Connecticut,  Geor-  agreement,  but  the  parties  may  contract 

gia,  Indiana,   Kansas,   Maryland,  Michi-  in  writing  for  any  rate.    Acts  1864,  p.  46, 

gan,  Minnesota,  Mississippi,  Ohio,  Penn-  §§  1,  4. 

sylvania,  Tennessee,  Texas,  Vermont,  and  Arkansas. —  Six  per  cent,  is  the  legal 

West  Virginia,  all  that  is  left  of  former  rate,  but  parties  may  contract  for  any  rate 

stringent  provisions  is  a  forfeiture  merely  not  exceeding  ten  per  cent.    Usury  renders 

of  the  usury  above  the  legal  interest;  that  the  contract  void  both  as  to  principal  and 

in   Alabama,  Illinois,   Kentucky,  Louisi-  interest.       Constitution,    1874,     art.     19, 

ana,  Nebraska,  New  Jersey,  Virginia,  Wis-  §  13. 

consin,  Dakota,  and  the  District  of  Colum-  California.  —  The  legal   rate  is   ten 

bia,  usury  forfeits   all  interest;  while  in  per  cent.,  but  the  parties  may  contract  for 

New  York,  Delaware,  North  Carolina,  Ar-  any   rate,   simple  or  compound.      Jndg- 

kansa«,  and  Oregon,  usury  makes  void  the  ments  bear  interest  from  date  of  entry,  at 

security.     In  Missouri  usury  works  a  for-  seven  percent.   Civil  Code,  1872,  §§  1917- 

feiturc  of  ten  per  cent.,  and  in  Iowa  ten  1920. 

pereent.of  ihecontractand  all  illegal  inter-  Colorado.  —  Ten  per  cent,  is  the  legal 

est.     In  Idaho  the  forfeiture  is  three  times  rate  on  loans  and   accounts.     Rev.  Stat. 

the  interest,  and   there  is   also  a  fine  of  1868,  c.  44,  §  1. 

$100.     In  North  Carolina  the  forfeiture  is  Connecticut.  —  Seven  per  cent,  is  the 

486 


WHAT    MORTGAGES    ARE   USURIOUS. 


[§  634. 


634.  Intent  to  take  usury.  —  A  mortgage  given  to  secure  a 
just  debt  is  neither  invalid  as  against  the  mortgagor,  nor  fraudu- 


legal  rate.  Usury  forfeits  the  interest  in 
excess.  Gen.  Stat.  1875,  p.  3.51. 
■  Dakota  Terkitouy.  —  Seven  percent. 
is  the  legiil  rate,  but  parties  may  contract 
for  a  higher  rate  not  exceeding  twelve  ])er 
cent.  Usury  forfeits  all  interest.  Code, 
1877,  §§  1097-1102. 

Delaware. —  Six  per  cent,  is  the  legal 
rate.  Usury  forfiit.s  a  sum  equal  to  the 
whole  loan.     Rev.  Code,  1874,  c.  63,  §  I. 

District  of  Columhia.  —  The  legal 
rate  is  six  percent.  Parties  may  stipulate, 
in  writing,  for  a  rate  not  exceeding  ten 
per  cent.  Usury  forfeits  a  sum  equal  to 
the  whole  interest  to  be  recovered  by  suit 
witliin  one  year  after  payment.  Rev.  Stat. 
D.  C.  §§  713,  717. 

Florida.  —  Eight  percent,  is  the  rate 
where  no  other  is  agreed  upon ;  but  any 
rate  is  allowed.     Bush  Dig.  p.  368. 

Georgia.  —  Seven  per  cent,  is  the  legal 
rate;  but  parties  may  contract  in  writing 
for  any  rate  not  exceeding  twelve  per  cent. 
Interest  in  excess  of  that  is  forfeited.  Code, 
1873,  §§  2050,  2051  ;  Acts  1875,  p.  105. 

Idaho  Territory. —  Ten  per  cent,  is 
the  legal  rate.  Parties  may  contract  in 
writing  for  any  rate  not  exceeding  two  per 
cent,  per  month  ;  though  a  judgment  bears 
only  ten  per  cent,  interest.  Penalty  for 
usury  is  forfeiture  of  three  times  the  in- 
terest paid,  and  liability  to  fine  of  one 
hundred  dollars,  or  six  months'  impris- 
onment, or  both.  Rev.  Laws,  1875,  p. 
646. 

Illinois.  —  Six  per  cent,  is  the  legal 
rate,  but  parties  may  contract  in  writing 
for  any  rate  not  exceeding  ten  per  cent. 
Usury  forfeits  the  entire  interest.  Cor- 
porations cannot  interpose  this  defence. 
Rev.  Stat.  1874,  p.  614,  §§  1,  4,  6,  11. 

Indiana.  —  The  legal  rate  is  si.x  per 
cent.,  but  parties  may  contract  in  writing 
for  any  rate  not  exceeding  ten.  Usury 
forfeits  the  excess.  Rev.  Stat.  1876,  p. 
599,  c.  158. 

Iowa.  —  The  legal  rate  is  six  per  cent., 
but  parties  may  agree  in  writing  for  a  rate 


not  exceeding  ten.  Usury  forfeits  ten  per 
cent,  on  the  amount  of  contract  to  the 
school  fund,  and  only  the  principal  can 
be  recovered.     Code,  1873,  §§  2077,  2080. 

Kansas.  —  Seven  percent,  is  the  legal 
rate,  but  parties  may  contract  in  writing 
for  interest  not  exceeding  twelve  per  cent. 
Payments  in  excess  of  that  rate  are  to  be 
accounted  as  payments  on  the  principal 
and  interest  at  twelve  per  cent.  G.  St. 
1868,  p.  525,  526,  §§  1,3;  Dassler's  St. 
1876,  c.  51. 

Kentucky.  —  The  legal  rate  is  six  per 
cent.,  but  parties  may  contract  in  writing 
for  interest  not  exceeding  ten  per  cent. 
Upon  the  death  of  a  promisor  in  a  con- 
tract for  a  higher  rate  than  six  per  cent.,  or 
after  judgment  upon  such  a  contract,  the 
rate  is  six  per  cent.  Usury  forfeits  the 
entire  interest.  Gen.  Stat.  1874,  c.  60, 
art.  1,  2. 

Louisiana.  —  Five  per  cent,  is  the  legal 
rate.  Eight  per  cent,  may  be  stipulated, 
and  a  hiirher  rate  may  be  received  if  em- 
bodied in  the  face  of  the  obligation,  or  by 
way  of  discount  ;  but  no  higher  rate  than 
eight  per  cent,  is  lawful  after  the  maturity 
of  the  obligation.  A  higher  rate  forfeits 
the  entire  interest.  Judgments  bear  the 
same  rate  as  the  contract.  Rev.  Stat.  1870, 
§§  1883,  1890. 

Maine.  —  Six  per  cent,  is  the  legal 
rate,  but  the  parties  may  agree  in  writing 
for  any  rate.     Rev.  St  t.  1871,  c.  45. 

Maryland. —  Six  per  cent,  is  the  legal 
rate.  Usury  forfeits  the  excess  above  that 
rate.     Code,  1860,  p.  696,  §§  1-5. 

Massachusetts.  Six  per  cent,  is  the 
legal  rate,  but  parties  may  contract  in 
writing  for  any  rate.  Gen.  Stat.  1860,  c. 
.53,  §§  3-5;  Stat.  1867,  c.  56. 

Michigan.  —  Seven  per  cent,  is  the  le- 
gal rate,  but  parties  may  contiact  in 
writing  for  a  higher  rate  not  exceeding 
ten  per  cent.  Usury  forfeits  the  excess  ; 
but  it  cannot  be  recovered  after  a  volun- 
tary payment.  A  purcliaser  in  good  faith 
of  negotiable  paper  is  not  affected  by  the 

487 


§  634.] 


USURY. 


lent  as  tigainst  his  creditors,  because  interest  has  been  calculated 
upon   the   debt   and  included  in  the  mortgage   in  excess  of    the 


usury.     Compiled  Laws,  1871,  p.  540,  §§ 
2,  4,  5. 

Minnesota.  —  Seven  per  cent,  is  tiie 
legal  rate.  Parties  may  agree  in  writing 
upon  any  rate  not  exceeding  twelve  per 
cent.  A  contract  fur  more  cannot  be  en- 
forced for  the  excess.     Stat.  1866,  c.   23, 

§1- 

Mjssissirn.  —  Six  per  cent,  is  the  le- 
gal rate,  but  parties  may  contract  in  writ- 
ing for  interest  not  exceeding  ten  ])er  cent. 
A  contract  for  more  cannot  be  enforced. 
Kev.  Code,  1871,  §  2279. 

Missouri. —  Six  per  cent,  is  the  legal 
rate,  but  parties  may  contiact  in  writing 
for  any  rate  not  exceeding  ten.  Usury 
forfeits  the  interest  at  ten  per  cent,  to 
the  common  schools.  Judgments  bear  the 
same  rate  of  interest  as  the  contract,  not 
exceeding  ten  per  cent.  Stat.  1870,  p. 
782,  §§  1,  3,  5. 

Montana  Territory.  —  Ten  per  cent, 
is  the  legal  rate,  but  parties  may  stipulate 
for  any  rate  of  interest.  Codified  Stat. 
1872,  c.  33,  §§  1-3. 

Nebraska.  —  Ten  per  cent,  is  the  legal 
rate,  but  parties  may  contract  for  a  rate 
not  exceeding  twelve,  but  this  may  be 
taken  in  advance.  Usury  forfeits  all  in- 
terest.    Rev.  Stat.  1873,  c.  34,  §§  1-5. 

Nevada.. —  Ten  per  cent,  is  the  legal 
rate,  but  parties  may  contract  in  writing 
for  auy  other  rate.  Comp.  Laws.  1873,  §§ 
32,  33. 

New  Hampshire.  —  Six  per  cent,  is 
the  It  gal  rate.  Usury  forfeits  three  times 
the  excess.  The  principal  and  legal  in- 
terest may  be  recovered.  Gen.  Stat.  1853; 
Acts  1872,  c.  12,  §  3. 

New  Jersey.  —  Seven  per  cent,  is  the 
legal  rate.  Usury  forfeits  all  interest. 
Rev.  Stat.  1874,  p.  356,  §§  1,2. 

New  Mexico  Territory.  —  Six  per 
cent,  is  the  legal  rate,  but  the  parties  may 
agree  upon  any  rate.  Judgments  bear  the 
same  rate  as  the  obligation. 

New  York.  —  Seven  per  cent,  is  the 
legal  rate.     Usury  makes  void  the   con- 

'488 


tract,  note,  liond,  or  mort,!iage,  even  in 
the  hands  of  innocent  third  parties ;  but 
no  cori)oration  can  plead  the  defence. 
Usury  is  also  a  misdemeanor  jiunisliable 
with  a  fine  of  one  thousand  dollars,  or  six 
months'  imprisonment,  or  both.  Banks 
are  exempt  from  these  penalties.  Rev. 
Stat.  1875,  p.  1164,  §§  1-20. 

North  Carolina.  —  Six  per  cent,  is 
the  legal  rate,  but  eight  per  cent,  may  be 
stipulated.  Usury  forfeits  double  the 
amount  of  the  loan,  and  is  iudictable  as  a 
misdemeanor.     Acts  1875,  c.  84. 

Ohio.  —  Six  per  cent,  is  the  legal  rate. 
Parties  may  contract  in  writing  for  eight. 
If  a  higher  rate  is  contracted  for,  only  the 
principal  and  six  per  cent,  can  be  re- 
covered. Judgments  bear  interest  at  rate 
of  the  contract.  Stat.  1876,  c.  1666,  §§ 
1,  3. 

Oregon.  —  Ten  per  cent,  is  the  legal 
rate,  but  parties  may  contract  for  twelve 
percent.  Usury  forfeits  the  debt.  Gen'l 
Laws,  1872,  pp.  623,  624. 

Pennsylvania.  —  Six  per  cent,  is  the 
legal  rate.  Usurious  interest  cannot  be 
collected,  and  if  collected,  may  be  re- 
covered by  suit  brought  within  six  months. 
Negotiable  paper  taken  in  good  faith,  in 
usual  course  of  business,  is  not  affected 
by  the  discount  allowed  upon  it.  Railroad 
and  canal  companies  may  sell  their  obli- 
gations below  par  without  making  the 
contract  usurious.  Dig.  Laws,  1872,  pp. 
803,  804,  §§  1,  2,  4. 

Rhode  Island.  —  Six  per  cent,  is  the 
legal  rate,  but  the  parties  may  agree  upon 
any  rate.     Gen.  Stat.  1872,  c.  128. 

South  Carolina.  —  Seven  per  cent,  is 
the  legal  rate.  The  parties  may  agree 
upon  any  rate.     Rev.  Stat.  p.  292,  §§  5-6. 

Tennessee.  —  Six  per  cent,  is  the  legal 
rate.  Parties  may  contract  in  writing  for 
interest  not  exceeding  ten  per  cent.  Judg- 
ments bear  interest  at  same  rate  as  con- 
tract within  this  limit.  If  a  higher  rate  is 
contracted  for,  the  excess  above  six  per 
cent,  cannot  be  recovered.     When  usuri- 


WHAT    MORTGAGES    ARE   USURIOUS. 


[§  634. 


strict  legal  right,  or  when  no  interest  at  all  was  collectible  at 
law,  if  the  allowance  was  just  and  equitable.^ 

But  if  a  mortgage  be  given  to  secure  a  preexisting  debt,  which 
was  tainted  with  usury,  the  mortgage  will  be  vitiated  by  the  usury 
of  the  original  indebtedness.^  A  mortgage  given  in  renewal  of 
one  that  is  tainted  with  usui-y  is  itself  affected  with  the  same 
taint."^  And  the  consequences  of  the  usury  will  attend  the  new 
security,  even  when  this  is  given  by  a  thiid  person,  if  there  be 
no  other  consideration  than  the  original  usurious  debt.  But  there 
is  no  rule  of  law  which  makes  it  unlawful  or  usurious  in  one  to 
loan  money,  to  be  used  by  the  borrower  in  paying  a  usurious  debt 
to  another,  if  this  loan  be  itself  free  from  usury.* 

Inasmuch  as  usury  depends  upon  the  intent  with  which  it  is 
taken,  the  court  will  look  into  the  whole  transaction  to  determine 
what  the  intent  was,  not  only  the  acts  of  the  parties  at  the  time 
of  the  transaction  but  subsequently.^ 

A  stipulation  for  the  payment  of  interest  at  the  highest  rate 
allowed  by  law,  at  periods  shorter  than   a  year,  whether   semi- 

ous  interest  has  been  paid,  it  may  be  re-  West  Virginia.—  Six  per  cent,  is  the 

covered  by  action.     Usury  is  also  a  mis-  lepal  rate.    The  excess  cannot  be  recovered 

demeanor  puni.-ibable  by  indictment  and  a  when  usury  is  ]ilcaded.    Tiiis  does  not  ap- 

fine  of  not  less  than  one  hundred  dollars,  ply  to    corporations.     Code,   1870,  c.  96, 

Stat.  1871,  §§  1944,  1945, 1948 ;  Act  1869,  §§  4,  6. 

0.69,  §1.  Wisconsin.  —  Seven   per  cent,  is   the 

Texas. —  Legal  rate  is  eight  per  cent,  legal  rate.     Parties  may  contract  in  writ- 

By  contract  twelve  per  cent,  may  be  re-  ing  for  ten  per  cent.     Usury  forfeits  all 

served.     The  excess  is  void.     Dig.  Laws,  interest.     Compound   interest  cannot    be 

1850,  art.  1607,  1608,  1609;  Constitution  computed  unless  expressly  agreed  upon  in 

of  1875.  writing.      Gen.   Laws,  1871,  c.  93,  §  2 ; 

Utah  Territory.  —  Ten  per  cent,  is  and  c.  43,  §  1. 

the  legal  rate.    Parties  may  agree  upon  Wyoming  Territory.  —  Twelve  per 

any  rate.     Laws  1868,  c.  13,  p.  15.  cent,  is  the  legal  rate,  l)ut  any  rate  may  be 

Vermont.  — Six  per  cent,  is  the  legal  agreed  upon.     Corap.  Laws,  1876,  c.  63, 

rate.     Anything  above  that  cannot  be  re-  §§  1,  2. 


covered,  or  if  paid,  may  be  recovered  back 
by  suit.  Gen.  Stat.  1862,  c.  79,  §§  3,  4  ; 
c.  67,  §  1. 

Virginia.  —  Six  per  cent  is  the  legal 
rate.  Usury  forfeits  all  interest.  The  law 
does  not  apply  to  corporations.  Acts 
1874,  c.  122. 

Washington  Territory'.  —  Ten  per 
cent,  is  the  legal  rate,  but  any  rate  may 


1  Spencer  v.  Ayrault,  10  N.  Y.  202. 

2  Bell  V.  Lent,  24  Wend.  (N.  Y.)  2.30; 
Vickery  v.  Dickson,  35  Barb.  (N.  Y.)  96. 

3  McCraney  v.  Alden,  46  Barb.  (N.  Y.) 
272  ;  see  Hoyt  v.  Bridgewater  Copper  Mi- 
ning Co.  2  Halst.  (N.  J.)  253,  625. 

*  Wilson   I'.  Harvey,  4   Lans.  (N.  Y.) 
507. 
6  Bardwell  v.  Howe,  Clarke  (N.  Y.), 


be  agreed    upon.     Judgments  bear   same    281;  Stelle  i;.  Andrews,  19  N.  J.  Kq.  409  ; 
rate  as  the  contract.     Stat.  1854,  p.  380,     see  Fox  v.  Lipe,  24  Wend.  (N.  Y.)  164. 

^^  489 


§§  635-637.]  USURY. 

annually  or  qutirterljs  does  not  make  the  loan  usurious. ^  Neither 
is  the  taking  of  interest  at  the  highest  rate  allowed  by  law,  in 
advance  for  a  whole  year,  usurious.^ 

635.  Attorney's  fees.  —  A  provision  for  the  payment  of  dam- 
ages to  the  amount  of  five  per  cent,  of  the  loan,  in  case  of  a  sale 
for  a  breach  of  the  condition,  is  not  usurious.^  It  is  in  effect 
only  a  stipulation  to  allow  compensation  for  extra  and  incidental 
trouble  and  expense  in  consequence  of  the  sale  ;  and  a  provision 
for  the  payment  of  the  expenses  of  foreclosure,  and  a  reasonable 
attorney's  fee,  is  generally  held  valid  and  not  obnoxious  to  the 
usury  laws.*  Whenever  the  stipulation  is  for  the  payment  of 
something  which  the  court  can  see  is  a  valid  and  legitimate 
charge  or  expense,  it  will  be  upheld  ;  but  if  the  stipulation  be 
so  indefinite  that  the  court  cannot  tell  whether  the  payment  was 
intended  to  be  for  something  legal  or  illegal,  it  will  not  be  upheld. 
Accordingly  it  has  been  held  that  a  stipulation  for  the  payment, 
in  case  of  foreclosure  of  the  costs  "  and  fifty  dollars  as  liqui- 
dated damages  for  the  foreclosure  of  the  mortgage,"  is  invalid.^ 
"  What  was  the  term  '  liquidated  damages,'  in  this  mortgage,  de- 
signed to  cover  ?  If  it  was  designed  to  cover  attorney  fees,  why 
did  not  the  parties  say  so  in  the  mortgage  ?  If  it  was  only  de- 
signed to  cover  any  legitimate  charge  or  expense,  why  did  they 
not  say  so  ?  ....  If  the  damages  were  for  usurious  interest,  then 
of  course  they  could  not  be  allowed."^ 

636.  An  agreement  to  pay  the  taxes  on  the  mortgage  debt  in 
addition  to  interest  las  been  held  not  to  be  usurious.'^ 

637.  Exchange.  —  When  no  place  of  payment  is  named  in 

1  Meyer  v.  City  of  Muscatine,  1  Wall,  that  a  provision  for  the  payment  of  an  at- 
384;  Mowry  v.  Bishop,  5  Paige  (N.  Y.),  torney's  fee  upon  foreclosure  is  against 
9S'  public  policy,  and  also  usurious  in  its  nat- 

2  Tholen  v.  Duffy,  7  Kans.  405,  and  ure,  and  cannot  be  enforced.  Thomasson 
cases  cited.  v.   Townsend,   10   Bush,   114;  Rilling   v. 

3  Siegel   V.   Druinni,   21    La.  Ann.   8;  Thompson,  12  lb.  114. 

Gambril   v.  Rose,   8   Blackf.   (lud.)   140;  5  poote  y.  Sprague,  13  Ivans.  155 ;  Tho- 

Bill  ngsley  v.  Dean,  11  I  ,d.  3:  1.  len  v.  Duffy,  7  Kans.  405. 

*  Wcatiicrby  v.  Smith,  30  Iowa,  131  ;  6  «  Foote  v.  Sprague,  supra,  per  Valen- 

Am.  Rep.  663;  Parham  V.  Pulliam,  5  Cold,  tine,  J.;   and   see  Kurtz   v.   Sponable,  6 

(Tenn.)  497  ;  Clawson  v.  Munson,  55  111.  Kans.  395  ;  Tholen  v.  Duffy,  7  Kans.  405. 

394.     In  Kentucky,  however,  it  is  held  7  Banks  v.  McClellan,  24  Md.  62. 

490 


WHAT    MORTGAGES    ARE    USURIOUS.  [§§  638,  639. 

the  mortgage,  the  debt  is  generally  payable  to  the  mortgagee 
•wherever  he  may  be  found.  If  made  payable  at  the  place  of  resi- 
dence of  the  mortgagor,  for  his  accommodation,  it  is  not  usurious 
for  him  to  allow  the  mortgagee  the  difference  of  exchange  between 
the  two  places  ;  unless  it  appear  that  this  allowance  was  a  mere 
device  on  the  part  of  the  mortgagee  to  evade  the  usury  laws,  and 
to  obtain  more  than  legal  interest  for  the  use  of  his  money .^ 

638.  A  mortgage  to  a  building  and  loan  association  is  not 
usurious,  when  under  the  articles  of  association,  in  addition  to 
monthh^  payments  of  interest,  the  mortgagor  is  bound  botli  by  the 
mortgage,  and  as  a  member  of  the  association,  to  pay  certain  fines 
and  impositions,^ 

639.  When  there  has  been  an  absolute  conveyance  of  land, 
■with  an  agreement  to  repurchase  within  a  fixed  time,  at  a  price 
exceeding  that  paid  for  it  and  interest,  the  transaction  may  be  a 
conditional  sale,  in  which  case  it  is  not  affected  with  usury.  If, 
however,  the  transaction  be  a  mortgage,  it  is  usurious.  As  al- 
ready noticed,  such  a  transaction  is  closely  observed  by  tlie  courts 
in  order  to  prevent  the  creditor  from  depriving  the  debtor  of  the 
right  of  redemption,  which  should  attach  to  it  as  a  mortgage. 
The  transaction  is,  moreover,  suspicious,  for  the  reason  that  it 
easily  affords  a  ready  cloak  for  usury.  It  will  not,  therefore,  be 
sustained  as  a  conditional  sale,  unless  it  clearly  appears  that  it  was 
in  good  faith  intended  as  such,  and  not  as  a  contrivance  to  cover 
usury.^ 

In  a  mortgage  any  agreement  to  pay  more  than  the  sum  loaned 
and  lawful  interest  is  usury  ;  and  usury  is  constituted  not  only  by 
the  payment  of  money,  but  by  any  arrangement  whereby  the 
lender  derives  a  profit  or  advantage  beyond  the  interest  allowed 
by  law.^ 

Where  the  laws  make  usurious  contracts  void,  any  transaction 
which  is  in  effect  a  mortgage,  though  called  a  sale  by  the  parties, 
and  is  usurious  in  effect,  is  rendered  invalid.  The  intent  is 
deduced  from  the  fact.     If  the  mortgagee  knowingly  and  volun- 

1  Williams  v.  Ilance,  7  Paige  (N.  Y.),  Ass'n  i;.  Vandervcrc,  3  Stockt.  (N.  J.)  382. 
581.  See  the  last  case  for  reasoDS. 

2  Red  Bank  Mut.  Build.  &  Loan  Ass'n  ^  Glcason  v.  Burke,  20  N.  J.  Eq.  300. 
V.  Tatterson,  27  N.  J.  Eq.  223  ;  Savings  *  Gleason  r.  Burke,  supra. 

491 


§§  640,  641.]  USURY. 

tarily  take  or  reserve  a  greater  interest  than  is  allowed  by  law, 
his  security  is  thereby  rendered  void  ;  though  it  is  not  if  taken  by 
mistake  or  accident.  But  aside  from  mistake  or  accident,  evi- 
dence will  not  be  allowed  to  show  that  the  mortgagee  did  not  in- 
tend to  violate  the  statute.^ 

In  whatever  way  the  transaction  may  be  disguised,  if  it  be  in 
fact  a  loan  at  a  usurious  rate  of  interest,  the  security  taken  will 
be  declared  void.^  The  attempt  is  sometimes  made  to  conceal 
usury  under  the  guise  of  rent ;  as  where  a  mortgage  was  given  to 
secure  a  loan  of  $3,000,  without  any  agreement  about  interest; 
but  the  mortgagee  leased  the  mortgaged  premises  to  the  mort- 
gagor at  an  annual  rent  of  -f  270,  which  was  held  to  be  an  agree- 
ment for  usurious  interest.^ 

640.  The  grantor  not  allowed  to  redeem  without  payment. 
But  on  the  other  hand,  it  is  held  that  although  a  court  of 
equity  will  allow  a  debtor  to  redeem,  when  to  secure  a  loan  of 
money  he  has  made  an  absolute  conveyance  of  land  and  taken 
an  agreement  to  repurchase,  yet  he  will  not  be  entitled  to  any  of 
the  penalties  or  forfeitures  given  by  the  statute  for  usury,  even 
when  it  is  shown  that  this  form  of  the  transaction  was  used  for 
the  purpose  of  covering  up  an  usuiious  rate  of  interest  agreed 
upon  between  the  parties.  The  debtor  is  entitled  to  a  convey- 
ance upon  the  payment  of  the  original  loan  with  legal  interest ; 
but  having  put  the  transaction  into  such  a  form  that  he  is  obliged 
to  ask  a  court  of  equity  for  relief  from  the  letter  of  the  contract, 
which  he  could  not  obtain  at  law,  the  court  will  impose  terms 
upon  him  to  do  equity.^ 

641.  Sale  of  mortgage.  —  Although  a  valid  mortgage  once  is- 
sued nuiy  be  sold  at  a  discount  without  involving  the  purchaser 
in  any  of  the  consequences  of  taking  usurious  interest,^  yet,  if  the 

1  Fiedler  v.  Darrin,  50  N.  Y.  437.  "  The  and  has  failed  in  his  attempt  to  evade  the 

phiintiff  doubtless  hoped  and  intended  to  consequences."     Per  Allen,  J. 

cover  up  his  tracks,  to  conceal  his  loan  ^  Fitzsimons  v.  Baum,  44  Pa.  St.  32  ; 

and  the  reservation  of  usurious  interest,  Birdsall   v.  Patterson,   51    N.  Y,  43  ;   An- 

under  the  weak  guise  of  a  purchase  and  drews  v.  Poe,  30  Md.  486. 

resale,  and  could  well  have  sworn  that  he  ^  Gordon  v.  Hobart,  2  Story,  243. 

did  not  intend  to  bring  himself  within  the  ■*  Ileacock  v.  Swartwont,  28  HI.  291. 

condemnation  of  the  law.     But  he  did  in  5  White  v.  Turner,  1  Hun  (N.  Y.),  623; 

fact  loan  his  money  at  an  illegal  interest,  Dowe  v.  Schutt,  2  Den.  (N.  Y.)  G21 ;  Lov- 
4U2 


WHAT   ARE   USURIOUS   MORTGAGES.  [§§  642,  643. 

mortgage  be  made  without  consideration  and  for  the  purpose  of 
being  sold,  inasniucli  as  the  subsequent  sale  gives  it  vitalit}',  and 
is  really  the  issuing  of  it,  a  sale  at  a  discount  has  the  same  effect 
in  rendering  it  void,  as  luis  the  taking  of  a  bonus  by  the  mort- 
gagee.^ It  would  seem,  however,  that  one  purchasing  a  mortgage 
at  a  discount  of  the  mortgagor's  agent,  in  whose  name  the  mort- 
gage stood,  without  knowledge  of  the  agency,  would  not  incur 
any  liability  for  usury. 

On  the  other  hand,  a  sale  of  mortgage  securities  at  a  premium 
by  the  mortgagee  does  not  subject  him  to  an  action  for  the  recov- 
ery of  the  premium  on  the  ground  of  usury .^ 

642.  If  the  agent  of  the  mortgagee,  in  making  the  loan, 
exact  a  payment  to  himself  by  way  of  commission  for  making 
the  loan,  the  loan  is  not  necessarily  rendered  usurious.'"^  The  pay- 
ment in  excess  of  legal  interest  can  hardly  affect  the  principal, 
when  it  is  made  without  his  knowledge  and  he  derives  no  benefit 
from  it.  If,  however,  his  agent  should,  even  without  his  author- 
ity, exact  such  a  payment,  and  he  should  afterwards  receive  the 
money,  or  any  part  of  it,  or  should  adopt  any  usurious  contract 
made  by  the  agent,  he  would  doubtless  be  held  liable  to  the  con- 
sequences of  the  usury.* 

So,  on  the  other  hand,  it  is  held  that  the  declarations  of  an 
agent,  to  whom  a  mortgage  is  made  for  the  purpose  of  enabling 
him  to  borrow  money  for  the  mortgagor,  that  he  owned  the  mort- 
gage, and  that  it  was  given  upon  a  previously  existing  indebted- 
ness to  him,  if  false  and  unauthorized,  are  not  binding  upon  the 
mortgagor,  and  do  not  estop  him  to  deny  them,  and  set  up  the 
defence  of  usury .^ 

643.  The  burden  of  proof  that  a  mortgage  is  usurious  is 
upon  the  mortgagor.  He  is  impeaching  his  own  obligation 
formally  executed  under  seal,  and  must  establish  the  facts  to  con- 
stitute   usury  beyond  a  reasonable   doubt.     An  even  balance  of 

ett  r.  Diniond,  4  Edw.  (N.  Y.)  Ch.  22  ;  »  Condit  v.  Baldwin,  21  N.  Y.  219  ;  Bell 

Mix  r.  Madison  lus.  Co.  II  Ind.  117.  v.  Pay,  32  N.  Y.  165. 

1  Vickery  v.  Dickson,  62  Barb.  (N.  Y.)  *  Estevez  v.  Piirdy,  6  Ilun  (N.  Y.),  46 ; 

272  ;  and  see  Walter  v.  Lind,  16  N.  J.  Eq.  and  sec  Algur  v.  Gardner,  54  N.  Y.  360. 

445;  Brooks  v.  Avery,  4  Comst.  (N.  Y.)  ^  New  York  Life  Ins.  &  Trust  Co.  v. 

225.     See  Culver  v.  Bigclow,  43  Vt.  249.  Beebe,  7  N.  Y.  364. 


2  Culver  V.  Bigelow,  43  Vt.  249. 


493 


§  644.]  USURY. 

testimony  is  not  sufficient ;  there  must  be  a  clear  preponderance. 
It  is  a  defence  not  favored  in  equity  ;  and  especially  when  the 
consequence  is  to  forfeit  the  whole  debt,  the  defence  is  considered 
unconscientious.^  When  the  penalty  is  simply  the  forfeiture  of 
the  illegal  interest,  or  of  all  interest,  even,  although  the  defence 
is  not  considered  unconscientious,  Jhe  rule  of  evidence,  that  the 
defence  must  be  clearly  made  out,  is  applied  both  at  law  and  in 
equit3\2 

In  a  mortgage  for  purchase  money,  the  fact  that  the  sum  se- 
cured is  greater  than  that  named  in  the  consideration  of  the  con- 
veyance to  the  mortgagor,  with  interest,  is  no  evidence  that  the 
difference  is  usury .^ 

644.  One  claiming  under  the  mortgagor  may  set  up  this 
defence.  —  It  has  sometimes  been  held  that  the  defence  of  usury 
is  so  exclusively  personal,  that  it  could  not  be  made  by  any  one 
but  the  mortgagor  ;  that  a  subsequent  incumbrancer  or  purchaser 
cannot  set  it  up.^  But  this  doctrine  has  been  generally  aban- 
doned, and  in  its  place  has  been  adopted  the  rule  that  not  only 
the  mortgagor,  but  an}'^  person  who  is  seised  of  his  estate  and 
vested  with  his  rights,  may  interpose  this  defence,  although  a  mere 
stranger  cannot.^  Thus,  a  voluntarj'-  assignee  of  the  mortgagor 
for  the  payment  of  his  debts  may  set  up  usury  in  the  mortgage.^ 
So  may  a  judgment  or  execution  creditor  of  the  mortgagor  ; '^  or  a 
purchaser  of  the  equity  of  redemption,^  unless  he  has  assumed  the 
payment   of  the   mortgage,  or   bought  subject  to  it,^  or  a  second 

1  Conover  v.  Van  Mater,  18  N.  J.  Eq.     Y.  568  ;  Dix  v.  Van  AVvck,  2  Hill  (N.  Y.), 
481.  522. 

2  Conover  v.  Van  Mater,  stipra.  ^  Green  v.  Kemp,  13  Mass.  515;  Bridge 

3  Vesey  v.  Ockington,  16  N.  H.  479.  v.  Hubbard,  15  Mass.  96,  103;  Gunnison 
*  Baskins    v.   Calhoun    45    Ala.    582;    v.  Gregg,  20  N.  H.  100;  Shufelt  v.  Shu- 

Sayre    v.   Fenno,  3   Ala.   458;    nor    by  felt,  9   Paige  (N.  Y.),  137,  145;  Brooks 

mortgagor's  wife  claiming  under  a  subse-  v.  Avery,  4  N.  Y.  225 ;  Berdan  v.   Sedg- 

quent  voluntary  conveyance.     Cain  v.  Gi-  wick,  44  N.  Y.  626  ;  BuUard  v.  Raynor, 

mon,  36Ala.  168.  30  N.  Y.   197,  202;   Banks  v.  McLellan, 

s  Brolasky  v.   Miller,  1    Stockt.  (N.  J.)  24  Md.  62  ;  McAlister  v.  Jerman,  32  Miss. 

808;  Westerfield  v.  Bried,   26   N.  J.   Eq.  142;  Doub  v.  Barnes,  1  Md-  Ch.  127. 
357.  9  See    Sands  v.   Church,  6  N.  Y.  347  ; 

6  Pearsall  v.  Kingsland,  3  Edw.  (N.  Y.)  Ferris  v.  Crawford,  2  Denio  (N.  Y.),  598  ; 

195.  Stephens  v.  Muir,  8  Ind.  352;  Wright  v. 

■^  Carow    V.   Kelly,    59    Barb.    (N.  Y.)  Bundy  11  Ind.  398. 
239  ;  Thompson  v.  Van  Vechten,  27   N. 

494 


WHAT  arf:  usurious  mortgages.        [§§  645,  646. 

mortgagee.^  Any  one  in  legal  privity  witli  the  mortgagor,  unless 
he  has  debarred  himself  of  the  right  to  dispute  the  mortgage,  may 
set  up  this  defence  ;  otherwise  the  property  would  be  practically 
inalienable  in  the  hands  of  the  mortgagor,  unless  he  should  be 
willing  to  affirm  the  usurious  mortgage  by  selling  the  property 
subject  to  it.  But  the  owner  of  the  property  has,  of  course,  the 
right  to  sell  the  property  as  though  such  void  mortgage  did  not 
exist ;  and  the  purchaser  necessaril}-  acquires  all  the  rights  of  his 
vendor  to  question  the  validity  of  the  usurious  incumbrance.^ 

645.  Subsequent  certificate  of  validity.  —  A  mortgagor  is 
not  estopped  from  setting  up  usury  by  reason  of  having  executed, 
after  the  making  of  the  mortgage,  a  covenant  or  certificate  under 
seal  that  the  mortgage  was  a  valid  and  subsisting  lien  upon  the 
premises  described,  unless  an  innocent  third  party  is  thereby  in- 
duced to  buy  the  mortgage,  relying  upon  the  statement.  As 
against  the  mortgagee  himself,  or  any  assignee  who  knew  the 
fact  of  usury,  it  would  be  without  effect. 

If  a  purchaser  has  notice  of  the  usurious  character  of  the  instru- 
ment, he  is  not  protected  by  such  a  certificate,  although  he  relied 
upon  it  as  a  protection  in  law.^  The  mortgagor  may  introduce 
evidence  to  show  that  the  purchaser  never  believed,  nor  acted 
upon,  the  statements  as  true.  He  may  show  that  the  mortgagee 
shared  in  a  very  large  fee,  paid  his  attorneys  in  the  matter  of  the 
loan,  and  that  it  was  really  a  cover  for  usury.* 

646.  Usury  cannot,  generally,  be  set  up  after  a  foreclosure 
and  sale.  —  Under  usury  laws  which  make  void  securities  affected 
with  usury,  the  question  arises,  what  limit  is  there  to  the  effect 
of  the  statute  ?  Does  a  foreclosure  of  the  mortgage  and  a  sale  of 
the  mortgaged  property  to  a  third  person  terminate  the  right  of 
the  mortgagor  to  avail  himself  of  the  usury,  or  do   the  conse 

1  Greene  v.  Tyler,  39  Pa.  St.  361;  equity  and  justice,  is  only  applied  to  con- 
Waterman  V.  Curtis,  26  Conn.  241.  Con-  elude  a  party  by  his  acts  and  admissions, 
tra,  Powell  v.  Hunt,  11  Iowa,  430.  when  in  good  conscience  he  ought  not  to 

2  Per  Chancellor  Walworth,  in  Shufelt  be  ])ermitted  to  gainsay  them  ;  and  that  it 
V.  Shufelt,  supra.  would  be  preposterous  to  hold  that  a  party 

3  Wilcox  i;.  Ilowell,  44  N.  Y.  398  ;  Eitel  is  estopped  from  claiming  that  the  very 
f.  Bracken,  38  N.  Y.  Superior  Court,  7.  In  instrument  claimed  to  estop  him  was  ob- 
the  former  case  the  court,  per  Earl,  C,  tained  by  fraud. 

said  that  the  doctrine  of  equitable  estop-  *  Van  Sickle  v.  Palmer,  2  Thomp.  & 
pel,    being    founded   upon    principles   of    C.  (N.  Y.)  612. 

495 


§  647.]  USURY. 

quences  of  it  still  attend  the  property  so  that  the  purchaser's  title 
may  be  rendered  void?  If  the  effect  of  the  usury  survives  the 
original  transaction,  in  the  words  of  Lord  Kenyo'ii,!  "  it  might 
effect  most  of  the  securities  of  the  kingdom  ;  for  if  in  tracing  a 
mortgage  for  a  century  past,  it  could  be  discovered  that  usury  had 
been  committed  in  any  part  of  the  transaction,  though  between 
other  parties,  the  consequence  would  be  that  the  whole  would  be 
void.  It  would  be  a  most  damning  proposition  to  the  holders  of 
all  securities."  This  question  was  also  answered  by  an  early  case 
in  New  York,  in  which  Chief  Justice  Kent,  delivering  the  opinion 
of  the  court,  said :  "  The  principles  of  public  policy,  and  the 
security  of  titles,  are  deeply  concerned  in  the  protection  of  such 
a  foreclosure.  If  the  purchase  was  to  be  defeated  by  the  usury 
in  the  original  contract,  it  would  be  difficult  to  set  bounds  to  the 
mischief  of  the  precedent,  or  to  say  in  Avhat  sequel  of  transac- 
tions, or  through  what  course  of  successive  eliminations,  and  for 
what  time  short  of  that  in  the  statute  of  limitations,  the  ante- 
cedent defect  was  to  be  deemed  covered  or  overlooked,  so  as  to 
give  quiet  to  the  title  of  the  bond  fide  purchaser.  The  inconven- 
ience to  title  would  be  alarming  and  enoruious.  The  law  has 
always  had  regard  to  deri"\'ative  titles,  when  fairly  procured  ;  and 
though  it  may  be  true,  as  an  abstract  principle,  that  a  derivative 
title  cannot  be  better  than  that  from  which  it  was  derived,  yet 
there  are  many  necessary  exceptions  to  the  operation  of  this  prin- 
ciple." ^ 

After  a  foreclosure  a  mortgage  contract  is  regarded  as  executed. 
So  long  as  the  contract  remained  executory,  the  mortgagor  could 
avail  himself  of  the  usury ;  but  when  it  is  executed,  and  others 
have  in  good  faith  acquired  interests  in  the  property,  the  objection 
can  no  longer  be  raised.  But  if  the  mortgagee  himself  buy  the 
property  directly  or  through  an  agent  at  the  foreclosure  sale,  it 
is  held  that  his  title  may  still  be  impeached  for  usury  in  the  mort- 
gage. Being  a  party  to  the  usurious  contract,  his  situation  is  no 
better  after  the  foreclosure  than  it  was  before.^ 

647,  A  bonus  paid  to  secure  the  extension  of  the  time  of 

1  Cuthbert  v.  Haley,  8  T.  R.  390.  Y.)  435 ;  and  see  McLaughlin  v.  Cosgrove, 

2  Jackson  v.  Henry,  10  Johns.  (N.  Y.)  99  Mass.  4.  So  with  any  purchaser  who 
185, 197  ;  and  see  Elliotts.  Wood,  53  Barb,  has  notice  of  the  usury  at  the  time  of  sale. 
(N.  Y.)  285.  Bissell  v.  Kellogg,  60  Barb.  (N.  Y.)  617. 

3  Jackson  v.  Dominick,  14  Johns.  (N, 

496 


WHAT   ARE   USURIOUS   MORTGAGES.  [§§  648,  649. 

payment  of  an  existing  mortgage  does  not  invalidate  the  mortgage 
as  a  security  for  the  original  debt,  but  the  amount  paid  should  be 
applied  as  a  payment  on  the  mortgage  debt.^  When  a  mortgage 
is  free  from  usury  in  its  inception,  no  subsequent  usurious  contract 
in  relation  to  it  can  affect  the  mortgage  itself.  It  is  only  the 
subsequent  contract  that  is  affected  by  the  usury. 

An  agreement  after  maturity  of  the  mortgage  debt  to  pay  a 
rate  of  interest  higher  than  is  allowed  by  law,  as  an  indemnity  to 
the  mortgagee  for  interest  paid  by  him  on  money  borrowed  in 
another  state  at  such  higher  rate,  will  not  for  that  reason  be  up- 
held.2 

648.  Usury  paid  for  extension  to  be  credited  on  debt.  — 
Under  the  usury  laws,  a  payment  made  by  a  mortgagor  to  the 
holder  of  the  mortgage,  as  a  premium  for  an  extension  of  the 
time  of  payment  of  the  principal  debt,  being  void  for  the  purpose 
for  which  it  was  made,  should  be  credited  as  a  payment  upon  the 
mortgage  debt  as  of  the  time  when  it  was  made.^ 

649.  When  agreement  to  extend  is  void  for  usury.  — 
Under  the  usury  laws  in  some  states,  it  is  held  that  an  agree- 
ment to  extend  the  time  of  payment  of  a  mortgage  is  void,  if 
made  in  consideration  of  a  usurious  payment  or  contract.  But 
while  the  cases  are  in  harmony  upon  this  point,  they  are  not 
agreed  whether  it  is  the  privilege  of  the  borrower  alone  to  take 
advantage  of  the  usurious  taint  of  the  contract ;  or  whether,  for 
instance,  thedender  may  disregard  the  contract  and  proceed  before 
the  expiration  of  such  extension  to  enforce  payment  or  foreclose 
the  mortgage.  On  the  one  hand  it  is  held  that  the  lender  can- 
not wilfully  violate  the  statute  against  usury,  and  then  take  ad- 
vantage of  his  own  wrong  by  repudiating  the  contract ;  that  the 
borrower,  or  his  surety,  or  personal  representative,  can  alone  set 
up  the  usury  ;  in  other  words,  that  the  victim  of  the  usury,  and 
not  the  usurer,  can  take  advantage  of  the  statute.'* 

1  Terhune  v.  Taylor,  27  N.  J  Eq.  80;  2  Eslava  v.  Lepretre,  21  Ala.  .504. 
Real  Estate  Trust  Co.  v.  Keech,  7  Hun  »  Laing  v.  Martin,  26  N.  J.  Eq.  93 ; 
(N.  Y.),  253,  and  cases  cited ;  Abrahams  v.  Trusdell  v.  Jones,  33  lb.  121,  .554  ;  Night- 
Claussen,  52  How.  (N.  Y.)  Pr.  241  ;  Lang-  ingale  v.  Meginnis,  34  N.  J.  L.  461  ;  Pat- 
don  V.  Gray,  lb.  3S7 ;  Donningion  v.  Mee-  terson  v.  Clark,  23  Ga.  526. 
ker,  3  Stockt.  (N.  J.)  362  ;  Trus  lell  v.  *  Billington  v.  Wagoner,  33  N  Y.  31, 
Jones,  23  N.  J.  Eq.  121 ;  S.  C.  lb.  554.  and  cases  cited. 

VOL.  I.                             32  497 


§  650.]  USURY. 

A  distinction  is  however  taken  between  a  contract  for  exten- 
sion founded  upon  a  consideration  of  an  actual  payment  of  money 
made  at  the  time  of  the  contract,  and  one  made  upon  an  execu- 
tory contract  to  pay  usury  ;  and  it  is  held,  that  while  the  con- 
tract is  binding  upon  the  creditor  in  the  former  case,  it  is  not 
binding  in  the  latter ;  as  for  instance  when  the  consideration  for 
the  extension  is  a  promissory  note  of  the  debtor.^ 

Extension  of  the  time  of  payment  is  a  sufficient  consideration  for 
an  agreement  to  increase  the  rate  of  interest  upon  the  debt,  and 
when  the  arrangement  has  once  been  entered  upon  without  a  defi- 
nite limitation  of  its  continuance  being  agreed  upon,  it  will  be 
presumed  that  the  increased  rate  of  interest  continues  as  long  as 
the  forbearance  is  granted.^ 

But,  on  the  other  hand,  the  true  rule  upon  this  subject  is  de- 
clared to  be,  that  the  court  will  not  help  either  party  to  enforce 
a  usurious  contract  while  it  remains  executory.^ 

A  promise  to  extend  the  time  of  payment  of  a  mortgage  made 
in  consideration  of  a  note  for  a  usurious  premium  is  void  ;  and 
the  mortgagee  may  foreclose  it  before  the  expiration  of  the  ex- 
tended time  upon  his  giving  up  the  usurious  note.  The  usurious 
contract  in  such  case  remains  executory,  and  the  court  will  not 
help  either  party  to  enforce  it.  It  is  not  the  privilege  of  the  bor- 
rower alone  to  take  advantage  of  the  usurious  taint.  The  statute 
makes  the  contract  void.^ 

2.    Compound   Interest. 

650.  An  executory  agreement  for  compound  interest.  —  As 
to  compound  interest,  the  general  rule  is  that  an  executory  con- 
tract for  it  cannot  be  enforced  ;  but  that  the  payment  of  such 
interest  by  the  debtor,  understandingly  and  under  no  peculiar 
circumstances  of  oppression,  does  not  constitute  usury .^  It  is  ad- 
mitted that  there  is  no  law  prohibiting  such  a  contract  :  but  the 
courts  have  adopted  the  rule  from  notion's  of  policy ;  holding  that 
although  it  may  be  demanded  and  recovered  as  it  becomes  due, 

1  Billington  v.  "Wagoner,  33  N.  Y.  31 ;  3  Jones  v.  Trusdell,  23  N.  J.  Eq.  554; 
Jones  V.  Trusdell,  23  N.  J.  Eq.  554,  per     S.  C.  lb.  121. 

Chief  Justice  Beasley.  *  Jones  v.  Trusdell,  23  N.  J.  Eq.  555  ; 

2  Haggerty  v.  Allaire  Works,  5  Sandf.     S.  C.  lb.  121. 

(N.  Y.)  230.  6  Culver  v.  Bigelow,  43  Vt.  249. 

498 


COMPOUND   INTEREST. 


[§  650. 


an  agreement  to  pay  interest  on  the  interest  after  it  becomes  due 
cannot  be  enforced.^ 

Lord  Thurlow,  said :  ^  "  My  opinion  is  in  favor  of  interest  upon 
interest ;  because  I  do  not  see  any  reason,  if  a  man  does  not  pay 
interest  when  he  ought,  why  he  should  not  pay  interest  for  that 
also.  But  I  have  found  the  court  in  a  constant  habit  of  thinking 
the  contrary  ;  and  I  must  overturn  all  the  proceedings  of  the 
court  if  I  give  it."  Lord  Eldon  also  said  that  a  bargain  for  in- 
terest on  interest  was  neither  unfair  nor  illegal,  but  that  it  could 
not  be  allowed  because  it  tended  to  usury,  although  it  was  not 
usury  .2 

In  several  states  it  is  now  provided  by  statute  that  interest 
upon  interest  may  be  contracted  for;*  and  it  would  seem  that, 


1  Connecticut  v.  Jackson,  1  Johns.  Ch. 
(N.  Y.)  13. 

2  In  Waring  v.  Cunliffe,  1  Ves.  Jun.  99. 

3  Chambers  v.  Goldwin,  9  Ves.  271. 
See,  also,  Blackburn  v.  Warwick,  2  Y.  &  C. 
92,  per  Alderson,  B.  ;  Barnard  v.  Young, 
17  Ves.  47  ;  Leith  v.  Irvine,  1  My.  &  K. 
284 ;  Thornhill  v.  Evans,  2  Atk.  330. 

*  In  Michigan  it  is  provided  that 
when  any  instalment  of  interest  upon 
any  note,  bond,  mortgage,  or  other  writ- 
ten contract,  shall  have  become  due,  and 
the  same  shall  remain  unpaid,  interest 
may  be  computed  and  collected  on  any 
such  instalment  so  due  and  unpaid,  from 
the  time  at  which  it  became  due,  at  the 
same  rate  as  specified  in  any  such  note, 
bond,  mortgage,  or  other  written  contract, 
not  exceeding  ten  per  cent. ;  and  if  no  rate 
of  interest  be  specified  in  such  instrument, 
then  at  the  rate  of  seven  per  centum  per 
annum.     Com.  Laws,  1871,  §  1637. 

In  Missouri  parties  may  contract  in 
writing  for  the  payment  of  interest  upon 
interest;  but  the  interest  shall  not  be  com- 
puted oftencr  than  once  in  a  year.  Where 
a  different  rate  is  not  expressed,  interest 
upon  interest  shall  be  at  the  same  rate  as 
interest  on  the  principal  debt.  Wag.  Stat. 
1870,  p.  783,  §  6  ;  Waples  v.  Jones,  62 
Mo.  440. 

In  California  the  parties  may  con- 
tract in  writing,  and  agree  that  if  the  in- 
terest is  not  punctually  paid  it  shall  be- 


come part  of  the  principal  and  bear  inter- 
est at  the  same  rate.  Civil  Code,  1873, 
§  1919. 

In  Wisconsin  it  is  provided  that  in- 
terest shall  not  be  compounded,  or  bear 
interest  upon  interest,  unless  there  be  an 
agreement  to  that  effect,  expressed  in  writ- 
ing, and  signed  by  the  party  to  be  charged 
therewith.     Stat.  1871,  p.  840,  §  10. 

Arizona.  —  Parties  may,  in  any  con- 
tract in  writing  whereby  any  debt  is  se- 
cured to  be  paid,  agree  that  if  the  interest 
on  such  debt  is  not  punctually  paid  it  shall 
become  a  part  of  the  principal,  and  there- 
after bear  the  same  rate  of  interest  as  the 
principal  debt.     Acts  1864,  p.  46,  §§1,4. 

On  the  other  hand,  express  provisions 
against  compound  interest  have  been  made 
in  a  few  states. 

Arkansas.  —  In  no  case  where  a  pay- 
ment shall  fall  short  of  paying  the  interest 
due  at  the  time  of  making  such  payment 
shall  the  balance  of  such  interest  be  added 
to  the  principal.     Stat.  1858,  p.  623,  §  11. 

In  Louisiana  interest  upon  interest 
cannot  be  recovered,  unless  it  be  added  to 
the  principal,  and  by  another  contract 
made  a  new  debt.  No  stipulation  to  that 
effect  in  the  original  contract  is  valid. 
Rev.  Civil  Code,  1870,  art.  1939. 

In  Idaho  no  person  or  corporation,  in 
computing  interest  on  any  bond,  bill, 
promissory  note,  or  any  other  instrument 
in  writing,  shall  add  the  interest,  or  any 

499 


§  651.]  USURY. 

inasmuch  as  the  objection  to  such  contracts  has  been  that  they 
savored  of  usury,  and  inasmuch  as  it  has  always  been  held  that 
the  parties  may,  by  a  new  agreement  after  the  interest  has  accrued, 
turn  it  into  principal,  in  those  states  where  the  laws  against  usury 
have  been  abolished,  there  can  be  no  reason  why  an  agreement 
for  turning  interest  into  principal  is  not  valid.  But  in  Nevada, 
although  it  is  provided  by  statute  that  parties  may  agree  in  writ- 
ing for  the  payment  of  any  rate  of  interest,  it  is  held  in  equity 
that  a  contract  for  compound  interest  cannot  be  enforced. ^  The 
court  say,  that  "  when  the  Nevada  statute  was  passed,  it  was  the 
settled  rule  of  courts  of  equity  to  refuse  to  allow  compound  in- 
terest, when  their  aid  was  invoked  to  collect  a  debt.  In  courts 
of  law  the  rule  was  not  so  well  settled,  but  we  think  a  majority 
of  the  States  of  this  Union,  and  the  English  courts  of  law,  had 
refused  to  enforce  that  portion  of  contracts  which  provided  for 
the  collection  of  compound  interest.  None  of  these  rulings  were 
founded  on  the  statutes  against  usury,  but  on  the  general  prin- 
ciples of  the  common  law,  as  it  existed  without  reference  to  the 
usury  law." 

651.  So  long  as  the  agreement  for  compound  interest  is  ex- 
ecutory merely  the  courts  will  not  lend  their  aid  to  enforce  it ; 
but  when  the  contract  has  been  acted  upon  by  the  parties,  and 
such  interest  has  been  paid,  the  courts  will  not  require  a  repay- 
ment, nor  will  they  hold  the  transaction  to  be  in  any  degree 
tainted  with  usury,  by  reason  of  such  payment.  Such  an  agree- 
ment does  not  render  a  mortgage  usurious,  but  the  contract,  so 
far  as  it  provided  for  usurious  interest,  is  void  ;  but  it  may  be  en- 
forced for  the  debt  and  interest,  even  where  usury  makes  void  the 
contract.^  An  agreement  to  pay  interest  on  interest,  made  after 
the  interest  has  accrued,  is  valid  and  may  be  enforced.^ 

Some  recent  decisions  do  away  with  this  distinction,  and  hold 
that  there  is  no  objection  to  a  contract  for  interest  upon  interest.* 

In  Ohio  it  is  the  settled  rule,  that  when  interest  is  payable  by 
the  terms  of  a  mortgage  at  stated  periods,  without  any  special 

portion  thereof  due,  to  the  principal,  and  ^  Tylee  v.  Yates,  3  Barb.  (N.  Y.)  222; 

compute  interest  thereon  as  part  of  the  Fobes  v.  Cantfield,  3  Ohio,  18. 

principal,  thereby  charging  compound  in-  *  Hollingsworth  v.  City  of  Detroit,  3 

terest.     Rev.  Laws,  1875,  p.  647,  §  6.  McLean,  472;    Scott  v.  Saffold,  37    Ga. 

1  Cox  V.  Smith,  1  Nev.  161.  384. 

«  Mowry  v.  Bishop,  5  Paige  (N.  Y.),98. 
500 


COMPOUND  INTEREST.  [§§  652,  653. 

agreement  to  that  effect,  it  becomes  principal  from  the  time  of 
payment,  and  may  be  recovered  as  such,  with  interest  from  the 
time  it  became  due.  Upon  a  note  which  simply  provides  for 
the  payment  of  interest  annually,  the  interest  on  the  interest  will 
be  computed  at  the  legal  rate  provided  for  cases  where  the  par- 
ties do  not  agree  upon  a  higher  rate  ;  and  although  the  interest 
upon  the  note  be  fixed  at  a  higher  rate,  in  the  absence  of  any 
agreement  as  to  the  rate  of  the  interest  upon  accrued  interest 
that  rate  will  not  govern. ^ 

But  when  interest  on  interest  is  stipulated  for,  the  rate  re- 
served by  mortgage,  if  within  the  limits  allowed  by  law,  will 
control.^ 

652.  Accrued  interest  is  a  debt ;  and  even  where  an  agree- 
ment made  at  the  time  of  the  loan  for  converting  interest  into 
principal,  from  time  to  time  as  it  shall  become  due,  is  not  al- 
lowed because  it  is  regarded  as  offensive  and  usurious,  yet  when 
it  has  become  due,  there  is  no  objection  to  the  parties  converting 
such  interest  into  principal,  and  securing  it  by  a  further  mort- 
gage. It  is  regarded  as  in  the  nature  of  a  further  advance,  and 
not  only  may  it  form  the  consideration  of  a  second  or  further 
mortgage,  but  as  between  the  parties  it  may  be  tacked  to  the 
first  mortgage.^ 

When  a  mortgage  is  given  to  secure  the  payment  of  money  in 
instalments,  to  commence  at  a  future  day,  "with  interest  semi- 
annually," interest  begins  to  run  from  the  making  of  the  con- 
tract. The  holder  may  sue  for  each  half  year's  interest  as  it 
becomes  due,  although  the  principal  is  not  due."^ 

653,  Interest  coupons.  —  It  is  the  general  practice  for  corpo- 
rations, in  making  mortgages  upon  their  property,  to  attach  to 
the  mortgage  bonds  coupons  representing  the  interest  payable  at 
the  several  times  when  the  interest  falls  due  ;  ^  and  this  practice 

1  Cramer  r.  Lepper,  26  Ohio    St.  59;  627;    Eslava   v.    Leprctre,   21   Ala.    504; 

S.  C.  20  Am.  R.  756.  Banks  v.   McClellan,   24    Md.   62  ;    Fitz- 

-  Watkinsoiif.  Root,4  0hio,373;  Dun-  huph  v.  McPlicrson,  3   Gill   (Md.),  408; 

lap  V.  Wiseman,  2  Dis.  (Ohio)  398.  Hale  v.  Hale,  1  Cold.  (Tenn.)  233  ;  Par- 

3  Quimby  v.  Cook,   10  Allen   (Mass.),  ham  v.  Pulliam,  5  Ih.  497. 

32;  Wilcox  r.  Howland,  23  Pick.  (Mass.)  *  Connors   i'.   Holland,    113   Mass.    50; 

167;    Pinckard    v.    Ponder,   6    Ga.   253;  Hastings  r.  Wiswall,  8  Ma.ss.  455. 

Townsend   v.  Corning,  1    Barb.  (N.  Y.)  ^  Harper  v.  Ely,  70  111.  581  ;  Hollings- 

501 


§§  654,  655.]  USURY. 

has  been  adopted  in  several  states  quite  extensively  by  individ- 
uals, in  making  ordinary  mortgages  or  trust  deeds  upon  their  pri- 
vate property.  Such  coupons  providing  for  the  payment  of  defi- 
nite sums  of  money  at  specified  times  are  in  effect  promissory 
notes,  and  are  held  to  draw  interest  in  the  same  manner  after 
maturity. 

Interest  coupons,  although  detached  from  the  bond,  are  still 
covered  by  the  lien  of  the  mortgage  given  to  secure  the  bond.^ 
Such  coupons  are  usually  payable  to  bearer,  and  may  be  trans- 
ferred and  presented  by  any  holder. ^ 

654.  Provision  for  compound  interest  no  waiver  of  right 
to  enforce  it  as  it  matures.  —  A  provision  for  the  payment  of 
interest  annually,  and  that  if  not  so  paid  it  should  be  com- 
pounded, is  no  waiver  of  the  right  to  enforce  its  payment  when 
due  ;  and  if  the  deed  further  provides  that  upon  a  failure  to  pay 
the  debt  or  interest  as  it  matures,  the  whole  shall  become  due 
and  payable,  upon  a  failure  to  pay  the  interest  annually  the  whole 
debt  or  the  interest  only  may  be  enforced  at  the  creditor's  elec- 
tion.^ 

655.  Computation  of  interest.  —  When  no  payments  have 
been  made  upon  the  mortgage,  the  interest  should  be  computed 
from  tlie  date  of  the  note  until  the  rendition  of  the  decree.  It 
is  erroneous  to  compute  the  interest  to  the  time  of  maturity,  and, 
adding  it  to  the  principal,  then  to  compute  it  upon  the  gross 
amount  to  the  time  of  rendering:  the  decree.* 

In  computing  interest  upon  a  note  with  interest  payable  annu- 
ally, intermediate  payments  made  on  account  of  the  interest  ac- 
cruing, but  not  yet  due,  should  be  deducted  at  the  end  of  the 
year,  without  any  allowance  of  interest  upon  them  ;  but  rests 
should  not  be  made  at  the  time  of  such  intermediate  payments, 
as  that  would  result  in  giving  compound  interest  upon  the  loan." 

worth  V.  City  of  Detroit,  3  McLean,  472 ;  2  Sewall  v.  Brainerd,  38  Vt.  364. 

Gelpeke  v.  City  of  Dubuque,  1  Wall.  175,  3  Waples  v.  Jones,  62  Mo.  440. 

206  ;    Dunlap  v.  Wiseman,  2  Dis.  (Ohio)  *  Barker  v.  International  Bank,  80  111. 

398 ;  County  Commissioners  Columbia  Co.  96.     See,  also,  Leonard  v.  Villars,  23  111. 

V.  Kinfr,  13  Fla.  451.  377. 

1  Miller  v.  Rutland,  &c.  R.  R.  Co.  40  ^  Townsend  v.  Riley,  46  N.  H.  300. 
Vt.  399. 

502 


CONFLICT   OF   LAWS.  [§§  656,  657. 

3.   Conflict  of  Laivs. 

QbQ.  The  general  rule  undoubtedly  is,  that  the  law  of  the 
place  where  the  contract  is  executed  governs  as  to  the  construc- 
tion and  validity  of  it ;  but  there  is  this  well  recognized  excep- 
tion to  the  rule,  or  qualification  of  it,  that  where  the  contract  is  to 
be  executed  in  another  place,  then  the  law  of  the  place  of  execu- 
tion will  govern. 1  When  the  mortgage  debt  is  by  its  terms  made 
payable  in  the  state  where  the  land  is  situated,  though  the  mortgage 
was  executed  in  another  state,  the  contract,  so  far  as  it  is  personal, 
is  to  be  interpreted  by  the  laws  of  the  place  of  performance.^  But 
the  place  where  the  mortgage  is  made  payable  may  be  different 
from  the  place  where  the  land  is  situated  ;  and  the  mortgage  may 
have  been  executed  in  still  a  third  place,  and  the  question  arises,  by 
what  law  is  the  mortgage  then  to  be  governed  ?  "  Obligations,  in 
respect  to  the  mode  of  their  solemnization,"  says  Mr.  Wharton,^ 
"  are  subject  to  the  rule  locus  regit  actum  ;  in  respect  to  their  in- 
terpretation, to  the  lex  loci  contractus  ;  in  respect  to  the  mode  of 
their  performance,  to  the  law  of  the  place  of  their  performance. 
But  the  lex  fori  determines  when  and  how  such  laws,  when  for- 
eign, are  to  be  adopted,  and,  in  all  cases  not  specified  above,  sup- 
plies the  applicatory  law."  Mr.  Justice  Hunt,  in  a  recent  case 
before  the  Supreme  Court  of  the  United  States,  after  quoting  the 
rule  as  above  laid  down,  himself  states  it  as  follows  :  *  "  Matters 
bearing  upon  the  execution,  the  interpretation,  and  the  validity  of 
a  contract  are  determined  by  the  law  of  the  place  where  the  con- 
tract is  made.  Matters  connected  with  its  performance  are  regu- 
lated by  the  law  prevailing  at  tlie  place  of  performance.  Matters 
respecting  the  remedy,  such  as  the  bringing  of  suits,  admissibility 
of  evidence,  statutes  of  limitation,  depend  upon  the  law  of  the 
place  where  the  suit  is  brought." 

657.  What  law  governs.  —  The  validity  of  a  contract  secured 
by  mortgage  made  in  one  state,  upon  lands  in  another  state,  de- 
pends, so  far  as  the  usury  laws  affect  it,  upon  the  question  by  the 

1  Morgan  v.  New  Orleans,  &c.  R.  Co.  2  -  Duncan  v.  Helm,  22  La.  Ann.  418. 

Woods,  244  ;  Junction  li.  Co.  v.  Bank  of  ^  Conflict  of  Laws,  §  401  p. 

Ashland,  12  Wall.  226;   Little  v.  Riley,  *  Scudder    i;.   Union   Nl.  Bank,  91   U. 

43  N.  IL  109  ;  Parham  v.  PuUiam,  5  Cold.  S.  406. 

(Tenn.)  497. 

603 


§  658.] 


USURY. 


law  of  which  state  is  the  contract  itself  governed  ?  If  the  loan 
is  to  be  repaid  in  the  state  where  it  is  made,  the  contract  would 
be  governed  by  the  laws  of  that  state,  even  when  secured  by 
mortgage  of  land  situate  in  another  state.^  If  nothing  be  said 
about  the  place  of  payment,  the  contract  is  presumably  payable 
where  the  parties  reside  and  the  contract  is  made,  although  the 
land  be  situated  in  another  state  ;  and  the  validity  of  the  contract 
would  be  determined  by  the  laws  of  the  place  of  contract.^  But 
the  parties  may  contract  with  reference  to  the  law  of  a  state 
other  than  that  where  the  land  is  situated,  and  if  the  note  or 
mortgage  be  made  payable  in  that  state,  the  law  of  that  state  will 
govern  in  the  construction  and  legal  effect  of  the  contract.^  The 
parties  may  stipulate  for  interest  with  reference  to  the  laws  of 
either  the  place  of  contract  or  the  place  of  payment,  so  long  as 
the  provision  be  made  in  good  faith,  and  not  as  a  cover  for  usury.* 

When  a  contract  is  made  payable  in  another  state  for  the  pur- 
pose of  evading  the  usury  laws  of  the  state  where  the  contract  is 
executed,  the  question  is  not  which  law  shall  govern  in  executing 
the  contract,  but  which  shall  decide  the  fate  of  the  security.  Un- 
questionably it  must  be  the  law  of  the  state  where  the  transaction 
was  had.° 

By  statute  in  Michigan,  the  interest  on  mortgages  may  be  made 
payable  out  of  the  state  at  such  place  as  the  parties  may  agree 
upon,  although  the  rate  of  interest  in  such  place  may  be  less  than 
in  this  state  ;  and  the  rate  of  interest  reserved  is  not  affected  by 
the  laws  of  the  place  where  payment  is  to  be  made.^ 

658.  But  the  laws  of  another  state  cannot  be  imported,  into 
a  contract  by  a  mere  mental  operation  or  understanding  of  the 
parties,  for  the  purpose  of  making  the  character  of  the  loan  dif- 
ferent from  what  it  is  under  the  law  of  the  place  of  contract.     A 

1  3  Kent's  Com.  460;  Story's  Conflict  Cotheal,  1  Halst.  (N.  J.)  Eq.  631  ;  Dobbin 
of  Laws,  §§  287,  292,  293;  Cope  v.  Whee-    v.  Hewett,  19  La.  Ann.  513. 

ler,  41   N.  Y.  303;   53  Barb.  350;  46  lb.  »  Duncan  v.  Helm,  22  La.  Ann.  418; 

272;  Newman  v.  Kershaw,  10  Wis.  333;  Nichols  v.  Cosset,  1  Koot  (Conn.),  294. 

Kennedy  r.  Knight,  21  Wis.  340.  *  Townsend   v.   Riley,  46   N.   H.  300; 

2  Cope  V.  Wheeler,  53  Barb.  (N.  Y.)  Pecks  v.  Mayo,  14  Vt.  38. 

350;  afFd  41   N.  Y.  303  ;  the  action  was  ^  Andrews  v.  Pond,  13  Peters,  78 ;  Mix 

for  surplus  money.     And  see  Williams  w.  v.  Madison  Ins.  Co.  11   Ind.  117. 

Ayrault,  31  Barb.  (N.  Y.)  364;  Williams  ^  Compiled  Laws  of  Mich.  1871,  pp.  541, 

V.  Fitzhugh,  37  N.  Y.  444 ;  Blydenburgh  v.  542. 

504 


CONFLICT    OF   LAWS.  [§  659. 

mortgage  was  made  in  New  York,  where  both  of  the  parties  to  it 
resided,  of  land  situate  in  Wisconsin,  and  interest  was  reserved 
at  the  rate  of  twelve  per  cent.,  which  was  legal  in  the  latter  but 
not  in  the  former  state.  The  only  pretext  that  the  loan  was 
made  with  reference  to  the  law  of  Wisconsin  was  that  the  mort- 
gagor had  money  due  to  her  there  at  twelve  per  cent,  interest, 
which  the  borrower  there  desired  to  retain,  and  therefore  he  was 
willing,  and  agreed  to  pay  that  rate  for  money  borrowed  in  New 
York,  to  relieve  temporary  wants.  But  the  loan  being  made  in 
New  York,  where  it  was  also  to  be  repaid,  and  the  use  of  the 
money  being  unrestricted,  the  reason  why  the  borrower  was  will- 
ing to  pay  more  than  lawful  interest  was  immaterial.  The  trans- 
action was,  therefore,  governed  by  the  laws  of  New  York,  under 
which  the  mortgage  was  usurious.^  The  same  decision  was  reached 
in  a  case  where  the  facts  were  substantially  the  same,  except  that 
the  mortgagor  resided  in  Ohio,  where  the  mortgaged  lands  were 
situated.  The  mortgage  was  executed  in  New  York,  and  was 
made  payable  there  ;  and  the  contract  was  therefore  governed  by 
the  laws  of  that  state.^  A  like  decision  was  made  in  Ohio  with 
reference  to  a  loan  negotiated  in  the  State  of  New  York,  where 
the  money  was  advanced,  and  a  note  and  mortgage  payable  there 
taken  as  security  ;  although  the  mortgage  covered  lands  in  Ohio, 
it  was  held  that  the  laws  of  the  state  of  New  York  relating  to 
usury  were  applicable  to  the  transaction. 

659.  In  some  cases  the  law  of  the  place  of  contract,  rather 
than  the  law  of  the  place  of  performance,  has  been  held  to 
prevail.  —  There  are,  however,  some  cases  which  hold  that  a  con- 
tract made  in  a  state  where  it  is  valid,  to  be  performed  in  another 
where  it  would  be  invalid,  may  after  all  be  held  valid  by  referring 
it  to  the  law  of  the  state  where  it  was  made.^  The  question  which 
law  shall  govern  depends  upon  the  law  applicable  to  the  contract 
itself,  and  not  upon  the  fact  that  the  mortgage,  considered  alone, 
would  be  valid  by  the  law  of  the  state  where  the  lands  lie.  "  The 
place  of  payment  may,  in  the  absence  of  any  more  controlling 
circumstances,  be  sufficient  to  show  that  the  parties  intended  to 

1  Cope  V.  Wheeler,  41  N.  Y.  303;  S.  C.  ^  Chapman  v.  Robertson,  6  Paige  (N. 
53  Barb.  350 ;  46  lb.  272.  Y.),  627  ;  Fisher  v.  Otis,  3  Chand.  (Wis.) 

2  Williams  v.  Fitzhugh,  37  N.  Y.  444;  83;  S.  C.  3  Finn.  (Wis.)  78  ;  Depau  t;. 
Lockwood  V.  Mitchell,  7  Ohio  St.  387.  Humphreys,  20  Martin  (La.),  1. 

605 


§  660.]  USURY. 

refer  their  contract  to  the  law  of  that  place.  Bat  if  the  loan  was 
actually  made  in  another  state,  the  money  to  be  used  there,  the  par- 
ties residing  there,  the  security  given  there  ;  and  if  by  that  law  the 
contract  would  be  valid,  and  it  would  be  invalid  by  the  law  of  the 
place  of  payment ;  these  facts  may  well  be  held  to  have  a  stronger 
influence  in  showing  the  intention  than  the  mere  place  of  pay- 
ment, and  the  rule  itself  resting  upon  that  intention,  where  the 
intention  is  rebutted  the  rule  should  cease."  ^ 

660.  The  lex  rei  sitae  does  not  control.  —  The  authorities 
generally  do  not  regard  the  circumstance  that  the  loan  is  secured 
by  mortgage  in  determining  whether  it  be  usurious.^  Thus  a 
loan  made  in  New  Hampshire,  upon  land  situated  there,  may  be 
made  payable  in  New  York,  and  may  provide  for  the  payment  of 
interest  at  the  rate  of  seven  per  cent.,  being  the  rate  allowed 
there,  though  this  be  a  higher  rate  than  that  allowed  by  the  laws 
of  New  Hampshire,  if  this  arrangement  be  made  in  good  faith, 
and  not  for  the  purpose  of  evading  the  laws  of  New  Hampshire  ; 
and  such  mortgage  witli  interest,  at  the  rate  so  provided,  will  be 
enforced  by  foreclosure  of  the  mortgage  in  New  Hampshire.^  Al- 
though the  mortgage  be  by  express  terms  payable  in  New  Hamp- 
shire, tlie  parties  may  after  its  maturity  agree  that  the  interest 
shall  be  paid  "as  by  law  established  in  New  York,"  where  the 
mortgagor  then  resided  ;  and  such  agreement  made  in  good  faith 
will  be  enforced  in  New  Hampshire.  "  It  is  true,"  said  Mr. 
Justice  Bellows,  "  that  in  many  cases  interest  may  properly  be 
regarded  as  a  mere  incident  of  the  debt,  and  so  payable  only 
where  the  principal  is  payable  ;  but  this  is  by  no  means  always  the 
case,  for  by  express  stipulation  the  interest  may  become  payable 
by  itself,  and  a  suit  maintained  for  it  before  the  principal  becomes 
due,  as  in  the  case  of  a  contract  to  pay  interest  annually ;  so  in 
the  case  of  bonds  with  coupons  attached ;  and  we  see  no  objection 

1  Newman   v.   Kershaw,   10   Wis.   333,  for  a  mortgage  of  a  plantation  in  the  West 

340,  per  Paine,  J.  Indies,  no  more  than  legal  interest  shall 

^  In   Connor  v.  Earl   of  Bellamont,    2  be  paid  upon  such  mortgage;  and  a  cove- 

Atk.  382,  Lord  Hardwicke  allowed  Irish  nant  in  it  to  pay  eight  per  cent,  interest  is 

interest  upon   a  debt  contracted  in   Eng-  within  the  statute  of  usury,  notwithstand-. 

land,  but  secured  by  a  bond  and  mortgage  ing  that  was  the  rate  of  interest  where  the 

executed  in  Ireland.     In  Stapleton  v.  Con-  land  lies. 

way,  3  Atk.  726,  the  same  eminent  judge         ^  Townsend  v.  Rilcy,  46  N.  H.  300. 
said  that  if  a  contract  is  made  in  England 

506 


CONFLICT   OF   LAWS.  [§  661. 

to  the  parties  being  allowed  to  fix  the  amount  of  interest,  and  the 
time  and  phice  of  payment  of  it,  as  they  may  all  other  particulars 
of  the  contract,  provided  it  be  done  in  good  faith,  and  with  no 
design  to  evade  the  usury  laws."  ^ 

A  mortgage  made  in  Ohio,  upon  land  in  that  state,  but  made 
payable  in  New  York  with  interest  at  the  rate  of  ten  per  cent., 
which  is  a  legal  rate  in  the  former  state  but  not  in  the  latter,  was 
treated  as  a  contract  made  in  Ohio  with  reference  to  the  laws  of 
that  state,  although  the  mortgagee  resided  in  Connecticut  and  the 
loan  was  made  by  means  of  a  draft  paid  in  New  York.^ 

A  like  decision  was  also  made  in  Wisconsin,  in  a  suit  to  fore- 
close a  mortgage  of  lands  situate  in  that  state,  made  in  New  York, 
where  the  parties  resided,  and  where  the  loan  was  made  payable ; 
therefore  the  laws  of  that  state  were  held  to  govern  the  contract 
as  to  its  validity  and  effect ;  ^  but  the  decision  would  be  other- 
wise in  case  the  mortgage  had  been  made  payable  in  Wisconsin, 
or  perhaps  had  been  made  there.* 

But  the  courts  of  New  York  refused  to  declare  void  a  mortgage 
made  in  Minnesota  upon  land  in  that  state,  with  interest  at  the 
rate  of  twenty-five  per  cent,  per  annum,  although  the  mortgage 
debt  was  made  payable  in  New  York ;  for  the  rate  of  interest  was 
considered  as  fixed  with  reference  to  the  place  of  contract.^ 

The  law  of  the  place  of  contract,  or  of  the  place  of  performance, 
determines  tlie  question  whether  the  mortgage  be  valid  or  usu- 
rious, irrespective  of  the  place  where  the  land,  which  is  the  sub- 
ject of  the  mortgage,  is  situated.^  The  location  of  the  land  mort- 
gaged may  perhaps  in  some  cases  be  considered  in  connection  with 
the  place  of  contract,  or  the  place  of  performance,  in  determining 
whether  the  parties  contracted  with  reference  to  the  law  of  the 
one  place  or  of  the  other  ;  but  on  the  authorities,  this  seems  to 
be  all  the  consideration  that  can  be  given  to  this  circumstance.^ 

661.  On  the  other  hand,  it  is  said  that  the  remedy  against  the 

1  In  Townsend  v.  Riley,  supra.  Dolman  !•.  Cook,  14  N.  J.  Eq.  56  ;  Cam- 

-  Roelofson  r.  Atwater,  1   Dis.   (Ohio)  pion  v.   Kille,  lb.  229;  Andrews  r.  Tor- 

346.  rey,  lb.  355;  Varick  v.  Crane,  3   Green 

3  Newman  I'.  Kershaw,  10  Wis.  3.33.  (N.   J.)    Ch.    128;    Cotheal   v.    Blynden- 

*  Kennedy  v.  Knight,  21  Wis.  340.  burgh,  1  Halst.  (N.  J.)  Ch.  17,  631. 

5  Balme  v.  Wombough,  38  Barb.  (N.  '  See  Newman  v.  Kershaw,  10  Wis. 
Y.)  352.  333  ;  Kennedy  v.  Knight,  21  Wis.  340. 

6  De  Wolf  V.  Johnson,  10   Wheat.  367; 

607 


§  661.]  USURY. 

mortgagor  personally  may  be  pursued  wherever  the  debtor  may 
be,  and  therefore  suit  may  be  brought  against  him  in  a  state  other 
than  that  in  which  the  mortgaged  premises  are  ;  but  tliat  the 
lien  upon  the  land  can  be  enforced  only  in  the  state  where  the 
land  is  situated.  The  loxfori  and  the  lex  rei  sitce  in  this  respect 
must  always  be  the  same.  It  is  moreover  a  well  settled  principle 
that  title  to  real  property  must  be  acquired  agreeably  to  the  law 
of  the  place  where  it  is  situated.  This  principle  applies  to  mort- 
gages as  well  as  to  absolute  conveyances ;  ^  and  of  course  the  rem- 
edy to  enforce  the  lien  must  be  sought  where  the  property  is. 
The  validity  of  a  mortgage,  it  is  declared,  must  therefor,e  be  de- 
termined by  the  law  of  the  state  where  the  mortgage  land  is, 
wherever  the  deed  may  be  executed  or  the  mortgage  debt  made 
payable.^ 

In  regard  to  these  cases  it  is  to  be  observed  that  Hosford  v. 
Nichols  was  decided  upon  the  ground  that  the  contract  was  in  fact 
executed  in  New  York,  where  the  land  was  situated,  and  therefore 
is  no  authority  for  the  position  that  the  law  of  the  place  where 
the  land  is  situated,  rather  than  the  law  of  the  place  of  contract, 
governs  as  to  usury.  The  later  case  of  Chapman  v.  Robertson  has 
often  been  criticised,  and,  so  far  as  it  holds  that  the  lex  rei  sitce 
governs  as  to  usury,  it  has  been  repeatedly  overruled  by  the  later 
cases  in  New  York. 

A  person  residing  in  New  York  being  in  England,  there  nego- 
tiated a  loan  upon  the  security  of  a  bond  and  mortgage  upon  lands 
in  New  York,  at  the  legal  rate  of  interest  in  that  state.  It  was 
arranged  that  upon  the  return  of  the  borrower  to  New  York  he 
should  execute  and  record  the  mortgage,  and  that  upon  the  re- 
ceipt of  it  in  England  the  mortgagee  should  deposit  the  money 

1  Hosford  u.  Nichols,  1  Paige  (N.  Y.),  setts,  to  indemnify  the  mortgagee  against 
220,  per  Walworth,  Chancellor ;  see  Van  a  liability  to  arise  subsequently.  Such  a 
Schaick  v.  Edwards,  2  Johns.  Cas.  (N.  mortgage  being  invalid  under  the  laws  of 
Y.)  355.  New  Hampshire,  this  invalidity  was  set  up 

2  In  support  of  this  position  are  cited  to  an  action  hi  Massachusetts  to  foreclose 
the  cases  in  the  last  note  and  the  follow-  the  mortgage.  The  court  —  Metcalf,  J.,  do- 
ing :  Goddard  V.  Sawyer,  9  Allen  (Mass.),  livering  the  opinion  —  say:  "  The  question 
78,  cited  and  approved  in  Sedgwick  v.  as  to  the  validity  of  the  mortgage  in  this 
Laflin,  10  lb.  430,  432,  per  Gray,  J.;  Lyon  case  is  to  be  decided  by  the  law  of  this 
V.  McUvaine,  24  Iowa,  9.  state,  within  which  the  mortgaged  prem- 

In  Goddard  v.  Sawyer,  supra,  a  mort-  ises  are  situate,  and  not  by  the  law  of 
gage  was  made  in  New  Hampshire,  where  New  Hampshire  where  it  was  executed, 
both  parties  resided,  of  land  in  Massachu-     and  where  the  parties  thereto  resided. 

608 


CONFLICT   OF  LAWS.  [§  662. 

with  the  mortgagor's  bankers  in  London  for  his  use.  This  was 
done  accordingly.  The  mortgage  was  usurious  under  the  hiws  of 
England  ;  but  it  was  held  in  a  suit  to  foi-eclose  the  mortgage  that 
the  usury  laws  of  England  could  not  be  set  up  in  defence.  Chan- 
cellor Walworth  said  :  "  Upon  a  full  examination  of  all  the  cases 
to  be  found  upon  the  subject,  either  in  this  country  or  in  Eng- 
land, none  of  which,  however,  appear  to  have  decided  the  precise 
question  which  arises  in  this  case,  I  have  arrived  at  the  conclu- 
sion that  the  mortgage  executed  here,  and  upon  property  in  this 
state,  being  valid  by  the  lex  situs,  which  is  also  the  law  of  the 
domicil  of  the  mortgagor,  it  is  the  duty  of  this  court  to  give  full 
effect  to  the  security,  without  reference  to  the  usury  laws  of  Eng- 
land, which  neither  party  intended  to  evade  or  violate  by  the  exe- 
cution of  a  mortgage  upon  lands  here."  ^ 

Then  as  to  the  case  of  Croddard  v.  Sawyer  in  Massachusetts, 
that  does  not  relate  to  the  contract  but  rather  to  the  form  and 
validity  of  the  instrument  itself.  The  learned  judge  who  gives 
the  opinion  refers  to  a  case  before  the  Supreme  Court  of  the 
United  States,  holding  that  title  to  land  by  devise  can  be  ac- 
quired only  under  a  will  duly  approved  and  recorded,  according 
to  the  law  of  the  state  in  which  the  lands  lie,  and  in  which  Mr. 
Justice  Washington  says :  "  It  is  an  acknowledged  principle  of 
law,  that  the  title  and  disposition  of  real  property  is  exclusively 
subject  to  the  laws  of  the  country  where  it  is  situated,  which  can 
alone  prescribe  the  mode  by  which  a  title  to  it  can  pass  from 
one  person  to  another."  Another  reference  in  the  Massachusetts 
case  is  to  an  earlier  case  in  that  state,  the  principal  bearing  of 
which  upon  the  case  before  the  court  is  in  the  statement  of  the 
principle,  that  "  the  title  to  and  disposition  of  real  estate  must  be 
exclusively  regulated  by  the  law  of  the  place  in  which  it  is  situ- 
ated." The  conclusion  therefore  is,  that  although  there  are  some 
statements  which  would  seem  to  support  the  position,  that  the 
question  of  usury  in  a  mortgage  executed  and  made  payable  in  a 
state  other  than  that  where  the  land  is  situated  is  to  be  deter- 
mined by  the  laws  of  the  state  where  tiie  land  is  situate,  there 
is  really  no  authority  for  this  position. ^ 

662.  But  as  to  the  form  and  validity  of  the  mortgage  deed 

1  Chapman  v.  Robertson,  6  Paige  (N.  ^  The  only  other  case  referred  to  is 
Y),  627.  Ilosford  v.  Nichols,  supra. 

509 


§  663.]  USURY. 

as  a  conveyance,  the  law  of  the  phice  where  the  land  is  situated 
must  always  govern.  Thus,  if  the  laws  of  the  state  where  the  lands 
are  situate  recognize  the  validity  of  a  mortgage  by  the  deposit  of 
the  title  deeds  by  a  debtor  with  his  creditor,  then  the  laws  of  that 
state  govern  as  to  the  lien,  although  the  transaction  be  had  in 
another  state. ^  But  if  such  a  mortgage  be  not  recognized  in  the 
state  where  the  lands  are,  the  fact  that  a  deposit  is  made  in  a 
state  or  country  where  a  mortgage  in  this  form  is  recognized  will 
not  enable  the  creditor  to  enforce  it  against  the  lands.  And  so 
if  the  laws  of  a  state  prohibit  the  making  of  a  mortgage  to  secure 
future  advances  or  liabilities,  a  mortgage  in  this  form,  of  land  in 
that  state,  would  not  be  recognized  there,  although  made  in  a 
state  where  such  a  mortgage  would  be  valid  ;  and  on  the  other 
hand,  such  a  mortgage  made  in  the  former  state  where  it  would 
not  be  valid,  but  covering  lands  in  a  state  where  such  a  mortgage 
is  valid,  would  be  enforced  in  the  latter  state,  because  it  is  a 
valid  conveyance  there.^ 

663.  The  laws  of  another  state  must  be  pleaded  and  proved. 
To  avail  of  the  usury  laws  of  another  state,  as  a  ground  for  de- 
fence, they  must  be  distinctly  set  up  in  the  answer,  and  at  the 
hearing  must  be  proved  as  matters  of  fact.^  Under  an  answer 
setting  up  usury  without  any  more  specific  allegation,  and  with- 
out any  averment  showing  that  the  contract  is  governed  in  this 
respect  by  the  laws  of  another  state,  the  defence  is  limited  to  the 
statutes  against  usury  of  the  state  where  the  action  is  pending.^ 
Until  otherwise  proved,  the  laws  of  another  state,  in  regard  to 
usury,  will  be  presumed  to  be  the  same  as  the  lex  fori.° 

The  law  in  force  at  the  time  of  the  delivery  of  a  mortgage 
governs  its  validity  or  construction,  so  far  as  these  are  affected 
by  statute.^  A  mortgage  made  in  Alabama  during  the  civil  war 
was  enforced  in  the  courts  of  that  state,  acting  under  the  Con- 
stitution and  laws  of  the  United  States  after  the  close  of  the  war, 
although  the  consideration  of  it  was  a  loan  of  Confederate  treas- 

1  Griffin  V.  Griffin,  IS  N.  J.  Eq.  104.  4;    Hosford  v.  Nichols,  1  Paige   (N.  Y.), 

2  Gotidard  v.  Sawyer,  9  Allen  (Mass.),     220. 

78.  *  Campion  v.  Kille,  supra. 

3  Champion  v.  Kille,  14  N.  J.  Eq.  229  ;  6  Van  Auken  v.  Dunning,  81  Pa.  St.  464. 
Dolman  v.  Cook,  lb.  56  ;  Andrews  v.  Tor-        «  Olson  v.  Nelson,  3  Minn.  53. 

rey,  lb.  355  ;  Klinck  w.  Price,  4  W.  Va. 

510 


CONFLICT   OF   LAWS.  [§  663. 

ury  notes,^  on  the  ground  that  it  was  valid  under  the  government 
de  facto  which  then  existed. 

A  stay  kiw,  making  void  and  of  no  effect  all  mortgages  and 
deeds  of  trust  for  the  benefit  of  creditors  thereafter  executed, 
whether  registered  or  not,  does  not  apply  to  a  mortgage  executed 
prior  to  the  passage  of  the  act,  but  registered  after  its  passage.^ 
Being  valid  when  made,  it  is  not  competent  for  the  legislature 
afterwards  to  make  it  invalid.^  A  mortgage  made  at  a  time  when 
there  is  no  statute  limiting  the  rate  of  interest  is  a  valid  security, 
although  the  rate  of  interest  be  extortionate  ;  and  its  validity  is 
not  affected  by  a  subsequent  statute  or  change  in  the  constitution 
of  the  state  limiting  the  rate  of  interest.'^ 

1  Scheible  v.  Bacho,  41  Ala.  423,  and        ^  Harrison  v.  Styers,  supra. 

cases  cited.    See  to  the  contrary,  however,         *  Newton  v.  Wilson,  31  Ark.  484  ;  Jac- 
Stillman  v.  Looney,  3  Cold.  (Tenn.)  20.        oway  v.  Denton,  25  Ark.  625. 

2  Harrison  v.  Stvers,  74  N.  C.  290. 

511 


CHAPTER  XV. 

A  mortgagor's  rights  ajsd  liabilities. 

Introductory.  —  The  nature  of  a  mortgage  was  considered  in 
the  first  chapter,  and  some  of  the  rules  and  statutes  were  there 
stated  which  determine  in  large  part  the  rights  and  liabilities  of 
the  parties.  The  rights  of  the  parties  with  reference  to  par- 
ticular matters  have  been  considered  in  other  chapters.  In  fact 
the  whole  treatise  relates,  in  some  form,  to  the  rights  or  liabilities 
of  either  the  mortgagor  or  mortgagee  ;  but  in  this  and  the  follow- 
ing chapters  it  is  proposed  to  treat  of  the  general  relations  of  the 
parties  to  each  other  and  to  third  persons ;  but  inasmuch  as  their 
relations  to  a  purchaser  of  the  equity  of  redemption,  to  a  lessee  of 
the  mortgaged  property,  and  to  an  assignee  of  the  mortgage,  pre- 
sent many  important  questions  in  respect  to  each,  special  chapters 
will  be  given  to  the  consideration  of  these. 

1.  As  to  Third  Persons. 

664.  His  right  of  possession  as  against  third  persons.  — 
The  owner  of  the  equity  of  redemption  is  entitled  to  possession 
as  against  every  one  except  the  mortgagee  and  those  claiming 
under  him,  and  may,  as  against  any  others,  maintain  a  real  action 
to  recover  possession. ^  Against  all  other  persons  he  has  the  same 
rights  respecting  the  mortgaged  premises  that  he  ever  had.^  He 
may,  so  far  as  his  interest  goes,  deal  with  it  in  every  respect  as 
the  owner.  He  may  devise  it,  sell  it,  or  lease  it,  or  make  any 
contracts  in  respect  to  it.^  His  conveyance  is  so  far  a  conveyance 
of  the  land  that  the  covenants  real  are  annexed  to  it,  and  pass 
with  it  to  the  grantee  and  his  assigns.^  The  wife  of  a  mortgagor  is 
entitled  to  dower,  and  the   husband  of  a  mortgagor  to  curtesy  in 

1  Huckinsv.  Straw,  34  Me.  166;  Stin-  2  Qrr  v.  Hadley,  36  N.  H.   575;  Wil- 
son V.  Ross,  51  Me.  556  ;  Bird  v.  Decker,  kins  v.  French,  20  Me.  Ill  ;  Chamberlain 
64  Me.  550  ;  Ellison  v.  Daniels,  11  N.  H.  v.  Thompson,  10  Conn.  243- 
274  ;  Hall  v.  Lance,  25   111.  277  ;  Doe  v.  3  Kennett  v.  Plummer,  28  Mo.  142. 
M'Loskey,  1  Ala.  708.  *■  White  v.  Whitney,  3  Met.  (Mass.)  81. 

612 


AS    TO   THIRD    PERSONS.  [§  664. 

the  mortgaged  premises.  The  equity  of  redemption  is  subject  to 
attachment,  and  to  sale  upon  execution  by  the  mortgagor's  cred- 
itors. He  has  the  remedies  of  an  owner  as  against  every  one, 
except  the  mortgagee,  who  interferes  with  his  possession  or  enjoy- 
ment of  the  hind.  At  common  law,  as  between  the  mortgagor 
and  mortgagee,  the  legal  title  is  in  the  latter,  and  so  remains  even 
after  the  debt  is  paid,  if  it  be  not  paid  till  after  the  law  day.^ 
But  no  one  can  avail  himself  of  this  title  but  the  mortgagee  ;  and 
therefore,  in  case  of  an  action  of  ejectment  brought  by  a  second 
mortgagee  against  the  mortgagor,  the  latter  cannot  set  up  the 
legal  title  of  the  prior  mortgagee  as  a  defence.  The  fact  that  he 
has  such  an  interest  in  the  land  as  will  enable  him  to  redeem,  can 
make  no  difference.  Until  he  does  redeem,  he  is  a  stranger  to  the 
legal  title. ^  The  fact  that  the  mortgagor  has  paid  since  the  law 
day,  but  has  taken  no  discharge,  constitutes  no  defence  to  an 
action  of  ejectment.^ 

So  long  as  he  remains  in  possession,  and  does  not  commit  waste, 
he  may  lawfully  dispose  of  the  products  of  the  land.*  He  may 
recover  damages  for  waste  committed  by  a  stranger,  in  cutting 
and  removing  trees  and  lumber  manufactured  from  them.^  As 
against  the  mortgagee  he  is  entitled  to  receive  the  rents  and  prof- 
its of  the  mortgaged  land,  and  to  take  the  emblements,  without 
being  liable  to  account.  The  mortgagee  has  the  remedies  of  an 
owner  for  the  purpose  of  enforcing  his  lien  against  the  mortgagor  ; 
but  except  as  to  such  remedies,  and  as  to  all  persons  but  the  mort- 
gagee, a  mortgagor  in  possession  is  to  be  regarded  and  treated  as 
the  owner  of  the  estate,  subject  merely  to  a  lien  or  charge.^  The 
legal  title  passes  by  the  mortgage  merely  for  the  purpose  of  giv- 
ing the  mortgagee  the  full  benefit  of  the  security.' 

After  possession  has  been  taken  by  the  mortgagee  for  the  pur- 
pose of  foreclosure,  the  mortgagor  cannot  maintain  an  action  of 

^  Chamberlain  v.  Thompson,  10  Conn.  ^  Willington  v.  Gale,  7  Mass.  138;  Tay- 

243  ;  Cross  v.  Robinson,  21   Conn.  379 ;  lor  v.   Porter,  7   Mass.  355  ;  Goodwin  v. 

Smith  V.  Vincent,  15    Conn.   1;  Toby  y.  Richardson,  11  Mass.  469,  473;  Snow  v. 

Reed,  9  Conn.  216;    Cooch  v.   Gerry,  3  Stevens,  15  Mass.  278 ;  Eaton  y.  Whiting, 

Har.  (Del.)  280.  3  Pick.  (Mass.)   484,  488 ;  Blanchard  v. 

2  Savage  v.  Dooley,  28  Conn.  411.  Brooks,  12  lb.  47  ;  Fay  v.  Cliency,  14  lb. 

3  Doton  V.  Russell,  17  Conn.  146.  399;  Clark  v.  Reyburn,  1  Kas.  281  ;  Col- 
*  Kimball  t'.  Lewiston  Steam  Mill   Co.  lins  v.  Torry,  7  Johns.  (N.  Y.)  278. 

55  Maine,  494.  ^  Glass  v.  Ellison,  9  N.  H.  69. 

6  Bird  V.  Decker,  64  Me.  550. 
VOL.  I.  33  513 


§  665.]  A  mortgagor's  rights  and  liabilities. 

tort  against  a  stranger  for  using  it  as  a  way.  There  being  no 
injury  to  the  reversionary  interest,  the  mortgagee  is  the  only  party 
entitled  to  maintain  such  action.^ 

665.  The  equity  of  redemption  of  the  mortgagor  may  be 
sold  on  execution.  — The  mortgagee  may  enfox'ce  against  it  an 
execution  obtained  upon  a  debt  not  secured  by  the  mortgage.^ 
The  levy  of  an  execution  by  any  other  creditor,  or  the  sale  under 
it,  does  not  affect  the  rights  of  the  mortgagee.^  Although  by  con- 
senting to  a  sale  of  the  mortgaged  property,  or  to  a  levy  upon  it, 
without  reference  to  his  mortgage,  he  may  debar  himself  from  as- 
serting his  title  afterwards.* 

If  no  account  be  taken  of  the  mortgage  in  making  the  levy, 
the  interest  of  the  debtor,  and  nothing  more,  passes  by  the  pro- 
ceedings.^   The  debtor,  in  such  case,  has  no  occasion  to  complain.® 

After  a  sale  upon  execution  the  mortgagor  has  no  rights  in  the 
land  unless  he  redeems  it,  or  unless  the  judgment  upon  which  the 
execution  was  issued  be  reversed.'^ 

Inasmuch  as  an  absolute  deed  with  a  bond  for  reconveyance 
constitute  an  express  mortgage,  the  property  is  subject  to  levy 
and  sale  upon  execution  under  a  judgment  against  the  grantor.^ 

If  a  mortgagee  be  in  possession  of  the  mortgaged  premises  after 
condition  broken,  a  sale  under  execution  against  the  mortgagor 
does  not  divest  him  of  possession,  or  enable  the  purchaser  to  re- 
cover possession  in  an  action  of  ejectment.  His  only  remedy  is  to 
redeem.^ 

In  some  states  the  laws  provide  for  a  sale  of  the  debtor's  right 
of  redeeming  mortgaged  land,  while  land  not  covered  by  a  mort- 
gage can  only  be  taken  by  a  levy  and  set-off  in  the  usual  way, 
and  is  not  the  subject  of  sale  on  execution.  Where  such  is  the 
law,  if  one  owning  a  tract  of  land  in  fee  mortgages  a  life  estate, 
the  reversion  is  not  covered  by  the  mortgage,  and  therefore  his 

1  Sparhawk  v.  Bagg,  16  Gray  (Mass.),         ^  Dunbar  v.  Starkey,  19  N.  H.  160. 
583.  6  Perrin  v.  Reed,  35  Vt.  2. 

2  Gushing  V.  Hurd,   4   Pick.    (Mass.)         7  Delano  v.  "Wilde,  11  Gray  (Mass.),  17. 
253.  8  Clinton  Nl.  Bank  v.  Manwarring,  39 

8  Febeiger  v.  Craighead,  4  Dall.   151  ;     Iowa,  281. 
Crow  V.  Tinsley,  6  Dana  (Ky.),  402 ;  Cot-        ^  Hall  v.  Tunnell,  1  Houst.  (Del.)  320; 
ten  V.  Blocker,  6  Fla.  1.  Dadmun  v.  Lamson,  9  Allen  (Mass.),  85. 

*  Grace  v.  Mercer,  10  B.   Mon.    (Ky.) 
157  ;  Smith  v.  Sweetser,  32  Me.  246. 

614 


AS    TO    THIRD    PERSONS.  [§  QQQ. 

title  to  it  is  not  an  equity  of  redemption,  and  cannot  be  sold  as 
constituting  a  part  of  his  equity  of  redemption.  When  the  life 
estate  expires,  the  equity  of  redemption  expires  with  it.  If  the 
niortgtige  is  foreclosed,  the  reversion  remains.  If  the  equity  is 
sold  on  execution,  the  reversion  remains.  No  interest  not  covered 
by  the  mortgage  passes  by  the  sale.^ 

The  sale  is  valid  though  there  be  a  right  of  homestead  in  the 
debtor,  and  the  sale  is  not  expressly  made  subject  to  it.  The  sale 
is  necessarily  subject  to  that  right,  and  whether  declared  so  or  not 
it  is  immaterial.^ 

If  land  subject  to  a  mortgage  be  attached,  and  afterwards  the 
mortgagee  sells  the  land  under  a  power  of  sale  for  more  than 
enough  to  pay  the  mortgage  debt  and  the  expenses  of  sale,  the 
attaching  creditor  may,  by  a  bill  in  equity  brought  within  the 
time  the  land  would  have  been  held  as  securit}'^  to  satisfy  the 
judgment,  enforce  his  lien  against  the  surplus  remaining  in  the 
hands  of  the  mortgagee.^  His  claim  has  preference  over  a  second 
mortgage  made  after  the  attachment.  The  surplus  after  the  sale 
belongs  to  the  same  persons  the  land  belonged  to  before  the  sale. 
No  means  being  provided  by  statute  for  enforcing  the  creditor's 
lien  against  the  funds,  equity  will  afford  a  remedy,  to  the  same 
effect  and  upon  the  same  conditions  as  nearly  as  may  be,  as  in 
proceedings  at  law  in  like  cases.* 

666.  The  widow  of  the  mortgagor  is  entitled  to  dower  in 
an  equity  of  redemption,  although  she  has  released  her  right  in 
the  mortgage.^  She  cannot  maintain  an  action  for  it  against  the 
mortgagee,  yet  if  the  mortgage  is  not  foreclosed,  she  is  allowed  in 
equity  to  redeem  the  mortgage,  and  then  take  her  dower.*"  She 
is  entitled  to  dower  in  the  whole  estate  as  against  every  one  but 
the  mortgagee,  but  to  redeem  the  land  from  him,  she  must  pay 
the  whole  amount  due  on  the  mortgage.'^     If,  however,  the  mort- 

1  Laflin  r.  Crosby,  99  Mass.  446.  ^  Eaton   v.  Simonds,  14  Pick.  (Mass.) 

2  Swan  V.  Stephens,  99  Mass.  7.  98 ;  Van   Duyne,    v.    Thayre,   14   Wend. 

3  Wiggin  V.  Ileywood,  118  Mass.  514.  (N.  Y.)  233  ;  Hitchcock  v.  Harrington,  6 
*  Per  Gray,  C.  J.,  in  Wiggin  v.  Hey-  Johns.  (N.  Y.)  290;  Collins  v.   Torry,  7 

•yrood,  supra.  lb.  278  ;  Coles  v.  Coles,  15  lb.  319  ;  Haw- 

6  Otherwise  in  England,  where  dower  is  ley  i-.  Bradford,  9    Paige    (N.  Y.),  200; 

a  legal   estate.     Story's   Eq.  Jur.  §  629  ;  Swaine  r.  Perine,  5  Johns.(N.  Y.)  Ch.  491. 

Kent,  C,  in  Titus  i;.  Neilson,  5  Johns.  (N  ^  McCabe  v.  Bellows,  7  Gray  (Mass.), 

Y.)  Ch.  452;  Snow  v.  Stevens,  15  Mass.  148,  and  cases  cited. 
278. 

515 


§  QQQ.'\  A  mortgagor's  rights  and  liabilities. 

gage  be  discharged  by  any  other  party  in  interest,  the  widow  of 
the  mortgagor  is  let  into  her  dower  in  the  unincumbered  estate  ; 
as  where  the  purchaser  of  the  equity  of  redemption,  on  an  execu- 
tion sale,  afterwards  paid  the  amount  due  on  the  mortgage  and 
claimed  an  assignment  of  it  from  the  mortgagee,  but  the  mort- 
gagee declaring  that  an  assignment  was  unnecessary,  discharged 
it  upon  the  margin  of  the  record ;  it  was  held  that  this  discharge 
operated  to  extinguish  the  mortgage,  and  not  as  an  equitable  as- 
signment of  it,  and  that  therefore  the  widow  was  dowerable  in 
the  land  free  from  the  incumbrance  of  the  mortgage. ^ 

If  a  purchaser  pays  off  a  mortgage  to  which  the  right  of  dower 
would  be  subject,  when  he  is  under  no  obligation  to  pay  the  mort- 
gage debt,  and  takes  an  assignment  of  the  mortgage,  his  mortgage 
title  will  prevent  an  assignment  of  dower  in  the  whole  estate  ;  ^ 
and  even  if  the  mortgage  be  discharged  and  not  in  form  assigned 
to  him,  he  may  in  some  cases  be  held  to  have  redeemed  the  mort- 
gage.3  But  if  the  mortgage  debt  be  paid  by  the  debtor,  or  from 
his  property,  or  in  his  behalf,  such  payment  is  a  discharge  of  the 
mortgage,  and  dower  can  be  assigned  in  the  whole  property ;  ^  and 
the  payment  is  in  behalf  of  the  debtor,  when  he  in  any  manner 
furnishes  the  means  of  payment,  or  imposes  an  obligation  on  the 
purchaser  to  assume  and  pay  the  debt  as  his  own.  In  such  cases 
an  assignment  of  the  mortgage  amounts  to  a  discharge,  and  the 
legal  title  under  the  mortgage  merges  in  the  equity.^ 

If  an  heir  or  devisee  give  a  bond  conditioned  to  pay  all  the 
debts  of  the  deceased,  and  he  take  an  assignment  of  a  mortgage  of 
a  part  of  the  real  estate  to  himself,  it  would  seem  that  he  could 
not  stand  upon  his  mortgage  title,  and  by  foreclosure  defeat  the 
widow's  estate  of  dower  and  homestead ;  because  the  bond  in  this 
case  may  be  regarded  as  supplying  the  place  of  the  assets  which 
would  otherwise  have  been  derived  from  the  sale  of  the  lands  ;  ^ 
and  certainly  in  such  case  if  dower  in  the  mortgaged  premises  had 
already  been  assigned  to  the  widow,  with  the  assent  of  the  heir  or 

1  Eaton  V.  Simonds,  14  Pick.  (Mass.)  363  ;  Bolton  v.  Ballard,  13  Mass.  227 ; 
98;  Wedge  v.  Moore,  6  Cush.  (Mass.)  8.  Brown  v.  Lapham,  3  Cush.  (Mass.)  551, 
See  chapter  xx.  on  "  Merger."  554. 

2  Strong  V.  Converse,  8  Allen  (Mass.),  ^  See  chapter  xx.  on  "Merger."  Mc- 
557  ;  Newton  v.  Cook,  4  Gray  (Mass.),  46.  Cabe  v.  Swap,  14  Allen  (Mass.),  188,  per 

8  See  chapter  xx.  on  "  Merger  "  Wells,  J. 

*  Holmes  v.  Holmes,  3  Paige  (N.  Y.),        ^  King  v.  King,  100  Mass.  224. 

516 


AS   TO   THE   MORTGAGEE.  [§  667. 

devisee,  he  could  not  set  up  his  mortgage  title  under  the  assign- 
ment or  foreclosure  against  the  dower  estate. ^ 

2.  As  to  the  Mortgagee. 

667.  The  mortgagor's  right  of  possession  as  against  the 
mortgagee.  —  Except  in  those  states  where  the  mortgagor  is  by 
statute  confirmed  in  his  possession  until  foreclosure,  unless  the 
mortgage  contains  a  covenant  or  agreement,  allowing  the  mort- 
gagor to  remain  in  possession  until  a  breach  of  condition  occurs, 
he  is  really  a  tenant  at  will,  and  may  be  ejected  by  the  mort- 
gagee without  notice ;  or  the  mortgagee  may  at  any  time  enter 
and  dispossess  him,  or  may  recover  possession  by  a  writ  of  entry .^ 
Yet,  while  the  mortgagor  is  left  in  possession,  he  is  in  most  re- 
spects regarded  as  the  owner  of  the  land,  and  he  may  occupy 
and  improve,  or  may  take  the  rents  and  profits  to  his  own  use, 
in  the  same  manner  as  before  he  made  the  mortgage.  The  com- 
mencement of  an  action  against  him  by  the  mortgagee  to  recover 
possession  does  not  change  his  rights  in  this  respect,  and  he  is 
not  accountable  for  the  rents  and  profits  accruing  afterwards,  and 
before  the  mortgagee  is  entitled  to  possession  under  the  judg- 
ment. If  the  mortgagee  wishes  to  receive  the  rents  and  profits, 
he  must  take  early  means  to  obtain  possession.^ 

But  the  mortgagee  cannot,  before  actually  taking  possession, 
give  another  person  any  right  to  the  possession  of  the  premises, 
to  the  exclusion  of  the  owner  of  the  equity  of  redemption.'* 

The  making  of  the  mortgage  deed,  and  the  subsequent  posses- 
sion of  the  mortgagor,  furnish  no  presumption  of  a  license  from 
the  riiortgagee  to  the  mortgagor  to  remain  in  possession.^     If  both 

1  Kinfr  V  King,  supra.  account  for  the  rents  and  profits  to  the 

2  See  §§  11,  15  ;  Keech  v.  Hall,  1  Doug,  mortgagee,  for  the  mortgagee  ought  to 
21  ;  Rockwell  v.  Bradley,  2  Conn.  1.  In  this  take  the  legal  remedies  to  get  into  posses- 
case  the  point  is  fully  discussed.  Brown  sion."  And  again,  in  Higgins  v.  The 
V.  Cram,  1  N.  H.  169;  Hartshorn  v.  Hub-  York  Buildings  Company,  2  Atk.  107, 
bard,  2  N.  H.  453  ;  Simpson  v.  Ammons,  the  same  judge  said  :  "  Upon  a  bill  brought 
1  Binn.  (Pa.)  175;  Smith  v.  Shuler,  12  S.  by  the  mortgagee  for  an  account  in  this 
&  R.  (Pa.)  240;  Martin  v.  Jackson,  27  court,  he  never  can  have  a  decree  for  an 
Pa.  St.  504  ;  Youngman  v.  Elmira,  &c.  R.  account  of  rents  and  profits  from  the 
Co.  65  Pa.  St.  278.  mortgagor  for  any  of  the  years  back  dur- 

8  Wilder  v.  Houghton,  1  Pick.  (Mass.)  ing  the  possession  of  the  mortg.igor." 

87.     "As  to  the  mortgagor,"  says  Lord  *  Silloway  v.  Brown,  12  Allen  (Mass.), 

Hardwicke,  in  Meade.  Lord  Orrery,  3  Atk.  30;  Mayo  v.  Fletcher,   14   Pick.  (Mass.) 

244, "  I  do  not  know  of  any  instance  where  531. 

he  keeps  in  possession,  that  he  is  liable  to  ^  Wakeman  v.  Banks,  2  Conn.  445. 

517 


§  668.]  A  mortgagor's  rights  and  liabilities. 

the  mortgagor  and  mortgagee  be  living  together  in  possession  of 
the  premises  after  condition  broken,  it  is  not  a  case  of  mixed  pos- 
session, as  between  tenants  in  common,  but  the  possession  is  in 
one  or  the  other ;  and  in  which  it  is,  is  a  question  of  fact  for  the 
jury  to  determine.^ 

An  affirmative  covenant  that  the  mortgagee  shall  retain  posses- 
sion of  the  premises  with  power  to  take  the  rents  and  profits 
until  default,  with  a  limitation  of  time  beyond  which  his  posses- 
sion shall  not  extend,  amounts  to  a  redemise.  But  a  redemise  is 
not  to  be  inferred  from  a  covenant,  that  the  mortgagor  will  not 
sell  or  lease  until  after  notice.^ 

The  mortgagor's  reservation  of  the  right  of  possession  seldom 
extends  his  right  beyond  a  breach  of  the  condition  by  him ;  and 
therefore,  except  in  those  states  in  which  by  statute  the  mort- 
gagee has  no  right  of  possession  before  foreclosure,  he  may  imme- 
diately, upon  default,  take  possession. ^ 

When  the  mortgagee  is  entitled  to  possession,  and  brings  an  ac- 
tion to  recover  it,  the  mortgagor  cannot  defend  on  the  ground  that 
the  mortgage  was  made  to  defraud  creditors.  He  is  not  allowed 
to  annul  his  own  conveyance,  uuder  which  a  perfect  legal  title  has 
passed  to  the  mortgagee.* 

668.  His  right  of  possession  may  be  implied  from  the  nat- 
ure of  the  condition,  as  where  a  mortgage  provided  that  he  should 
occupy  and  cultivate  a  farm,  and  deliver  to  the  mortgagee  one 
half  of  the  produce  of  it.  By  accepting  an  estate  with  such  a  con- 
dition, the  mortgagee  is  as  much  estopped  from  claiming  posses- 
sion as  he  would  have  been  if  he  had  agreed  by  indenture  that  the 
mortgagor  should  retain  exclusive  occupation.  If,  before  default, 
the  mortgagor's  possession  be  disturbed  by  entry  of  the  mort- 
gagee, except  for  the  purpose  of  taking  away  his  own  share  of  the 
produce,  he  is  liable  in  an  action  of  trespass.^  So,  also,  if  a  mort- 
gagee take  a  lease  of  the  premises  from  the  mortgagor,  and  cove- 
nant to  pay  him  rent  until  the  condition  be  broken,  this  amounts 

1  Doe  v.Tunnell.l  Houston  (Del.),  320.         *  Brookover  v.  Hurst,    1    Mete.   (Ky.) 

2  George's   Creek   Coal  &  Iron    Co.  v.     665. 

Detmold,  1   Md.  225.  5  gee   §§  80,  389;    Flagg  e;.Flagg,  11 

3  Pierce  v.  Brown,  24  Vt.  165;  Pratt  v.  Pick.  (Mass.)  475  ;  Hartshorn  r.  Hubbard, 
Skolfield,  45  Me.  386  ;  Stevens  v.  Brown,  2  N.  H.  453  ;  Flanders  v.  Lamphear,  9  N. 
Walk.  (Micb.)  41  ;  Hill  v.  Robertson,  24  H.  201  ;  Rhoades  v.  Parker,  10  N.  H.  83 ; 
Miss.  368.  Lamb  v.  Foss,  21  Me.  240. 

518 


AS   TO   THE   MORTGAGEE.  [§  069. 

to  an  agreement  that  the  mortgagor  shall  retain  possession,  and 
receive  the  profits  to  his  own  use.^  A  provision  in  the  mortgage, 
that  the  mortgagee  may  enter  after  default,  implies  that  the  mort- 
gagor is  entitled  to  possession  until  such  default.^ 

A  stipulation,  that  upon  default  the  mortgagee  may  take  pos- 
session and  receive  the  rents  and  profits  until  the  mortgage  debt 
shall  be  paid,  may  be  enforced  by  the  mortgagee's  taking  posses- 
sion and  holding  it ;  but  the  mortgagor  is  entitled  to  have  the 
property  again  at  any  time  upon  paying  the  mortgage  debt.^ 

An  express  stipulation  is  not  necessary  to  enable  the  mortgagor 
to  retain  possession  until  a  breach  of  the  condition,  when  the 
very  purpose  of  the  instrument  is  such,  that  the  mortgagor  can- 
not fulfil  his  covenants  without  the  possession  of  the  property ; 
as  for  instance  when  the  purpose  is  to  secure  an  agreement  to 
support.* 

The  agreement  that  the  mortgagor  may  remain  in  possession 
need  not  be  in  the  mortgage  itself,  but  may  be  contained  in  a  sep- 
arate paper,  as  for  instance  the  mortgage  note.^ 

The  mortgagor's  right  of  possession  until  breach  of  the  condi- 
tion is  implied  from  a  condition  that  the  mortgagor  shall  support 
the  mortgagee  during  his  life,  or  shall  deliver  to  him  a  certain 
portion  of  the  produce  annually.^  By  taking  possession  in  such 
case  the  mortgagee  would  prevent  the  mortgagor's  carrying  into 
effect  the  purpose  for  which  alone  the  mortgage  was  made.^ 

669.  The  mortgagor's  right  of  possession  as  modified  by 
statute. — It  has  already  been  noticed  that  in  several  states  the 
common  law  doctrine  of  the  relation  between  the  mortgagor  and 
mortgagee  is  wholly  done  away  with,  and  the  mortgagee  cannot 
obtain  possession  of  the  mortgaged  premises,  even  after  condition 
broken,  except  by  purchasing  them  on  a  foreclosure  suit.^  Even 
the  foreclosure  decree  and  sale  under  it  do  not  divest  the  mort- 
gagor of  his  right  of  possession ;  this  is  not  lost  till  the  deed  un- 
der the  sale  is  delivered  to  the  purchaser.     If  the  premises  are 

1  Newall  V.  Wright,  3  Mass.  138.  «  Norton  v.  Webb,  35  Me.  218 ;  Brown 

2  Smith  V.  Tajlor,  9  Ala.  633.  v.  Leach,  3.5  Me.  39  ;    Clay   i'.  Wren,   34 
8  Mclntyre  v.   Whitfield,  21  Miss.  (13     Me.  187  ;  Lamb  v.  Foss,  21  Me.  240. 

Sm.  &  M.)  88.  And  see  ITyman  v.  Kelly,  "  Wales  v.  Mellon,  1  Gray  (Mass.),  512. 
1  Nev.  179.  That   he   may   enter  immediately.      See 

*  Soper  V.  Guernsey,  71  Pn.  St.  219.  Colmau  v.  Packard,  16  Mass.  39. 

6  Clay  V.  Wren,  34  Me.  187.  »  See  §§  17-56. 

519 


§  670.]  A  mortgagor's  rights  and  liabilities. 

occupied  by  tenants,  the  mortgagor  may  collect  the  rents  until  the 
purchaser  is  entitled  to  enter  under  his  deed.^  An  exception  to 
this  rule  is  made  in  case  the  property  is  shown  to  be  inadequate 
to  meet  the  mortgage  debt,  in  which  case  the  court  may  appoint 
a  receiver  of  the  rents  and  profits  pending  proceedings  to  fore- 
close.2 

Where  the  mortgagor  is  by  statute  protected  in  his  possession 
until  foreclosure,  his  possession  is  a  matter  of  right,  and  not  of 
sufferance,  as  it  is  at  common  law,  except  when  assured  to  him 
by  express  agreement.^ 

670.  The  mortgagor's  rights  to  the  rents  and  profits.  —  So 
long  as  the  mortgagor  is  allowed  to  remain  in  possession  he  is  en- 
titled to  receive  and  apply  to  his  own  use  the  income  and  profits 
of  the  mortgaged  estate.^  He  is  not  liable  for  rent.  His  con- 
tract is  to  pay  interest  and  not  rent.  Although  the  mortgagee  may 
have  the  right  to  take  possession  upon  a  breach  of  the  condition, 
if  he  does  not  exercise  this  right,  he  cannot  claim  the  profits.^ 
Upon  a  bill  in  equity  to  obtain  foreclosure  and  sale,  he  may,  in 
proper  cases,  apply  for  the  appointment  of  a  receiver  to  take  for 
his  benefit  the  earnings  of  the  property.  If  he  neglect  to  do 
this,  the  final  decree,  if  silent  upon  this  subject,  does  not  affect 
the  mortgagor's  possession  or  right  to  the  earnings  in  the  mean 
time.  The  sale  under  the  decree,  except  where  statutes  provide 
otherwise,  wholly  divests  him  of  title,  and  consequently  of  right 
to  possession. 

These  principles  are  the  same  whatever  may  be  the  subject  of 
the  mortgage.  Although  the  mortgage  be  given  by  a  railroad 
company,  and  by  its  terms  includes  not  only  its  property  and 
franchises,  but  also  "  the  tolls,  rents,  and  profits  to  be  had,  gained, 
or  levied  therefrom,"  but  it  is  implied  from  the  mortgage  that  the 
company  is  to  hold  possession  and  receive  the  earnings  of  the 
road  until  the  mortgagees  take  it,  or  the  proper  judicial  authority 

1  Gelston  V.  Burr,  11  Johns.  (N.  Y.)  Ladue  z;.  Detroit,  &c.  R.  Co.  13  Mich. 
482;  Astor  w.  Turner,  11  Paige  (N.  Y.),  380;  Kidd  v.  Temple,  22  Cal.  255;  Hoo- 
436;  Clason  i-.  Corley,  5  Sandf.   (N.  Y.)     peri;.  Wilson,  12  Vt.  695. 

447 ;  Mitchell  v.  Bartlett,  52  Barb.  (N.  *  Boston  Bank  v.  Eeed,  8  Pick.  (Mass.) 
Y.)  319.  459  ;  Mayo  v.  Fletcher,  14  lb.  525;  Noyes 

2  Post  V.  Dorr,  4  Edw.  Ch.  412 ;    Lof-    v.  Rich,  52  Me.  115. 

sky  V.  Maujer,  3  Sand.  Ch.  69.  &  McKinn  v.  Mason,  3  Md.  Ch.  186. 

8  Crippen   v.  Morrison,   13    Mich.  23 ; 

•     520 


AS   TO   THE   MORTGAGEE.  [§  671. 

should  interpose;  the  possession,  so  long  as  it  is  continuous,  gives 
the  right  to  receive  the  income  of  the  road,  and  to  apply  it  to 
the  general  purposes  and  debts  of  the  company.  So  long  as  the 
company  is  allowed  to  receive  the  income  of  the  road,  it  is  within 
its  discretion  to  decide  what  shall  be  done  with  it.  The  mort- 
gage does  not  affect  the  application  of  it.  If  the  mortgagees  want 
it  they  must  take  possession  of  the  road,  or,  pending  a  bill  to 
foreclose  the  mortgage,  apply  for  the  appointment  of  a  receiver. ^ 
Upon  the  appointment  of  a  receiver,  he  cannot  maintain  a  suit  to 
recover  earnings  of  the  road  in  the  hands  of  an  agent,  which  ac- 
crued before  the  receiver's  appointment. ^ 

In  like  manner,  if  the  mortgage  be  of  leasehold  premises,  and 
the  mortgagor  hold  over  after  breach  of  the  condition,  the  law 
does  not  imply  an  obligation  on  his  part  to  pay  rent  previous  to 
an  entry  by  the  mortgagee.^ 

671.  Whether  the  mortgagor  is  liable  for  rent  after  the 
mortgagee's  entry  to  foreclose.  —  It  seems  to  be  an  open  ques- 
tion whether,  in  the  absence  of  any  agreement  for  payment  of 
rent,  a  mortgagee,  after  entry  to  foreclose,  may  maintain  an  action 
against  his  mortgagor  for  use  and  occupation.^  Such  an  action 
certainly  cannot  be  maintained  after  the  foreclosure  has  been  com- 
pleted, if  the  premises  are  then  worth  more  than  the  debt  and  in- 
terest secured  by  the  mortgage  ;  for  a  completed  foreclosure  is 
payment  of  the  mortgage  debt,  in  contemplation  of  law,  if  the 
value  of  the  estate  is  equal  to  or  greater  than  the  whole  sum 
due.^  If  the  mortgagee  be  not  satisfied,  he  may  recover  any  de- 
ficiency ;  and  on  this  ground  he  might  recover  rents  previously 
due  from  the  mortgagor.  "  A  foreclosure,"  said  Mr.  Justice 
Wells,*^  "  would  not,  of  itself,  prevent  recovery  of  rents  previ- 
ously due  from  the  mortgagor.  But  such  a  recovery  against  him 
would  be  held  to  operate,  like  a  recovery  of  part  of  the  mortgage 
debt,  specifically  to  open  the  foreclosure.  Perhaps,  in  a  suit  for 
rents,  it  might  not  be  necessary  for  the  plaintiff  to  show  afiirma- 

1  Gilman  v.  111.  &  Miss.  Tel.  Co.  91  U.        *  Morse  v.  Mcrritt,  110  Mass.  458 ;  Mer- 
S.  603.    SeePullan  v.  C.  &  C,  Air  Line  R.     rill  i-.  Bullock,  105  Mass.  486. 

Co.  5  Diss.  237.  ^  Morse  v.  Mcrritt,  110  Mass.  458. 

2  Noyes  v.  Rich,  52  Me.  115.  <=  In  Morse  v.  Mcrritt,  supra. 
8  Mayo   V.  Fletcher,   14   Pick.  (Mass.) 

525. 

521 


§  671.]  A  mortgagor's  rights  and  liabilities. 

tively  that  the  land  was  insufficient  in  value  for  the  full  payment 
of  the  mortgage  debt.  The  mortgagor's  rights  would  all  be 
secured  by  the  opportunity  to  redeem  thus  afforded  him.  In  this 
case,  however,  it  appears  by  the  report  that,  at  the  time  of  the 
contemplated  foreclosure,  the  value  of  the  estate  was  greater  than 
the  whole  sum  due  to  the  mortgagee,  and  that  the  mortgagee  has 
sold  and  conveyed  the  estate  ;  so  that  he  ought  to  be  precluded 
from  opening  the  foreclosure,  or  denying  the  sufficiency  of  the 
payment.  The  amount  due  to  him  upon  his  mortgage  was  ascer- 
tained by  the  decree  upon  the  bill  to  redeem.  No  deduction  was 
then  made  on  account  of  the  sums  which  he  now  seeks  to  recover. 
If  they  had  been  collected  when  they  became  due,  as  is  claimed, 
the  amount  required  for  redemption  by  the  decree  would  have 
been  reduced  by  so  much.  He  can  have  no  better  right  now  to 
collect  it  for  his  own  use,  without  applying  it  to  the  relief  of  the 
mortgage,  than  he  had  before  the  foreclosure." 

Although  after  a  breach  of  the  condition  of  the  mortgage,  the 
holder  of  it  having  the  legal  title,  and  the  right  of  present  posses- 
sion, may,  if  he  sees  fit,  exercise  this  right,  and  he  will  thereupon 
become  entitled  to  all  the  damages  that  may  be  done  to  the  pos- 
session ;  yet  if  without  taking  possession  under  his  mortgage  he 
flows  the  mortgaged  land,  by  means  of  a  mill-dam  upon  other 
land  belonging  to  him,  such  flowing  is  not  an  exercise  of  any  right 
of  possession  or  of  ownership.  It  is  not  the  exercise  of  any  pos- 
session under  the  mortgage.  The  injury  is  an  incidental  result  of 
the  exercise  of  his  riparian  rights  annexed  to  other  lands.  So 
long  as  the  mortgagor  is  suffered  to  remain  in  possession  he  is 
entitled,  by  virtue  of  that  possession,  to  the  damages,  notwith- 
standing the  person  who  caused  the  flowing  is  the  holder  of  a 
mortgage  upon  the  premises  flowed.^ 

The  mortgagee  becomes  entitled  to  recover  and  receive  the 
damages  from  the  time  he  takes  possession,  at  which  time  the 
right  of  the  mortgagor  ceases.  But  the  mortgagor  may  after- 
wards recover  for  damages  suffered  while  he  was  in  possession.^ 
The  fact,  therefore,  that  the  defendant  has  taken  an  assignment 
of  the  mortgage,  is  no  defence  to  the  mortgagor's  right  to  main- 
tain an  action  for  such  damages,  so  long  as,  by  the  terms  of  the 

1  Vaugh  r.  Wetherell,  116  Mass.  138;  ~  Vaugh  v.  Wetherell,  116  Mass.  138; 
Paine  v.  Woods,  108  Mass.  160.  Walker  i^.   Oxford  Woollen    Manuf.  Co. 

10  Met.  (Mass.)  203. 

522 


AS   TO   THE   MORTGAGEE.  [§§  672,  673. 

mortgage,  the  holder  of  the  mortgage  is  restricted  from  the  right 
of  possession.^ 

672,  A  mortgagor  does  not  hold  adversely  to  the  mort- 
gagee. —  His  possession  is  at  common  hiw  consistent  with  the  right 
and  title  of  the  mortgagee.  But  a  mortgagor  may,  by  his  decla- 
rations and  acts,  repudiate  the  mortgage,  deny  the  title  or  right 
claimed  under  it,  and  convert  his  holding  into  an  adverse  holding. 
So  may  the  grantee  of  the  mortgagor.^  The  possession  of  a  mort- 
gagor, after  a  foreclosure  sale,  is  presumed  to  be  in  subordination 
to  the  title  of  the  purchaser ;  and  the  statute  of  limitations  does 
not  run  in  his  favor  ;  ^  and  the  same  may  be  said  of  his  posses- 
sion after  a  decree  of  strict  foreclosure,  and  the  expiration  of  the 
time  of  redemption.*  He  is  a  tenant  at  sufferance  of  the  mort- 
gagee.^ 

The  possession  of  the  mortgagor  is  so  far  that  of  the  mortgagee 
that  the  latter  may  purchase,  while  such  possession  continues, 
an  outstanding  title  or  lien  for  his  own  protection,  and  hold  it  as 
paramount  to  his  mortgage  title,  notwithstanding  a  statute  mak- 
ing void  a  purchase  of  land  which  is  at  the  time  in  the  actual  pos- 
session of  another  claiming  adversely.*^ 

673.  The  mortgagor's  remedy  to  recover  possession  of  the 
mortgagee  after  payment  is  in  equity.  —  If  a  mortgagee  who 
has  entered  for  condition  broken  refuses,  after  payment  of  the  debt, 
to  relinquish  possession,  the  remedy  of  the  mortgagor  is  by  bill 
in  equity ;  and  this  is  his  only  remedy.'^  If  ejectment  would  lie 
in  such  case,  the  mortgagee  would  have  no  remedy  to  recover  for 
disbursements  made  by  him  for  repairs  ;  for  his  right  to  demand 
these  depends  upon  the  rules  of  equity,  and  not  those  of  common 
law,  under  which  the  mortgagee  is  considered  as  the  absolute 
owner. ^  If  on  a  bill  by  the  mortgagor  to  recover  possession,  it 
appears  that  there  is  a  balance  due  from  the  mortgagee  to  him,  he 
cannot  have  judgment  and  execution  for  such  balance,  but  must 

1  VauRh  V.  Wetherell,  supra.  ^  "Wright  v.  Sperry,  25  Wis.  617;  and 

2  Jamison  v.  Perry,  38  Iowa,  14.  see  Walthall  v.  Rives,  34  Ala.  91,  97. 
8  Seeley  i-.  Manning,  37  Wis.  574,  and         •  Wilson  v.  Ring,  40  Me.  116. 

see  Wright  v.  Sperry,  25  Wis.  617.  »  See  chapter  xxii.on  "  Redemption." 

*  Tucker  f.  Keeler,  4  Vt.  161.  Parsons   v.  Welles,  17  Mass.  419  ;  Hill.  v. 

6  Tucker  v.  Keeler,  supra.  Payson,  3  Mass.  560.     Contra,  see  Blanch- 

ard  V.  Kenton,  4  Bibb  (Ky.),  451. 

623 


§§  674,  675.]    A  mortgagor's  rights  and  liabilities. 

proceed  at  law.^  And  when  one  claiming  under  the  mortgagor 
has  not  been  made  a  party  to  a  bill  in  equity  to  foreclose  a  mort- 
gage, so  that  he  is  not  bound  by  the  proceedings,  he  cannot  main- 
tain ejectment  against  a  purchaser  at  the  foreclosure  sale  ;  his  only 
remedy  is  by  a  bill  to  redeem.^ 

The  mortgagee  in  possession  after  condition  bi'oken,  until  a  dis- 
charge of  the  mortgage  or  a  reconveyance,  retains  the  legal  estate, 
although  the  mortgage  debt  may  have  been  paid  or  satisfied,  and 
although  he  could  not  maintain  an  action  to  recover  possession, 
because  no  conditional  judgment  could  be  entered  ;  yet  being  in 
possession,  he  could  not  be  dispossessed  in  an  action  at  law.  The 
only  remedy  against  him  is  in  equity.^ 

674.  A  mortgagor  cannot  maintain  ejectment  against  the 
mortgagee  in  possession  so  long  as  there  is  any  question  whether 
the  mortgage  debt  has  been  paid  in  full,  or  there  remains  any 
question  of  account  to  be  settled  between  the  parties.*  He  must 
resort  to  a  bill  to  redeem.  That  is  the  only  way  in  Avhich  an  ac- 
count can  be  settled  ;  so  that  even  when  the  mortgagee  has  in 
fact  received  rents  and  profits  from  the  premises  sufficient  to  sat- 
isfy the  debt,  he  can  be  compelled  to  apply  them  to  the  payment 
of  it  only  by  a  suit  in  equity.  Neither  can  the  mortgagor  main- 
tain a  writ  of  entry  against  the  mortgagee,  or  his  assignee  in  pos- 
session, after  condition  broken  ;  as  before  stated,  his  remedy  is  in 
equity  only.^ 

675.  A  mortgagor  cannot  maintain  trespass  against  the 
mortgagee,  or  any  one  holding  under  him,  after  entry  for  condition 
broken,  although  the  mortgage  debt  be  in  fact  paid,  if  it  be  not 
released.^  Neither  can  a  mortgagor  who  is  not  entitled  by  the 
terms  of  the  mortgage,  on  a  fair  construction  of  it,  to  retain  pos- 
session, maintain  trespass  against  a  mortgagee  for  entering  and 
carrying  away   a  fixture.'^     And   even    before   condition  broken, 

1  Taylor  v.  Townsend,  6  Mass.  264.  5  Woods  v.  Woods,  66  Me.  206. 

2  Frische  v.  Kramer,  16  Ohio,  125.  6  Howe  v.  Lewis,  14  Pick.  (Mass.)  329  ; 
^  New   England   Jewelry    Co.  v.   Mer-     Parsons  v.  Welles,  17  Mass.  419;  Taylor 

riam,  2  Alien  (Mass.),  390.  v.  Townsend,  8  Mass.  411. 

4  Beach  v.  Cooke,  28  N.  Y.  508  ;  Ed-        ^  Chellis  v,  Stearns,  22  N.  H.  (2  Post.) 
wards  v.  Farmers' Eire  Ins.  &  Loan  Co.     312  ;  see  Mooney  t;.  Brinkley,  17  Ark.  340. 
21  Wend.  467  ;  26  lb.  541  ;  and  see  Dough- 
erty V.  Kercheval,  1  A.  K.  Marsh.  (Ky.)  38. 

524 


HIS   PERSONAL   LIABILITY    TO   THE   MORTGAGEE.       [§§  676,  677. 

when  the  possession  is  not  either  expressly  or  impliedly  secured 
to  the  mortgagor  by  the  mortgage  deed,  he  cannot  maintain  tres- 
pass against  the  mortgagee  for  entering  and  harvesting  the  crops 
growing  upon  the  land.  The  gist  of  the  action  is  unlawful  entry ; 
but  the  entry  of  the  mortgagee  in  such  case  is  lawful.^  Yet  the 
objection  that  trespass  will  not  lie  by  a  mortgagor  against  a  mort- 
gagee does  not  hold,  when  it  is  shown  that  the  mortgagor  is  in 
possession  under  an  agreement  which  makes  him  a  tenant  of  the 


676.  A  mortgagor  has  a  perfect  right  to  convey  his  equity 
of  redemption  or  any  interest  in  it ;  and  although  he  thereby 
obliges  the  mortgagee  to  make  his  grantees  parties  to  a  suit  to 
foreclose  the  mortgage,  his  conveyances  cannot  be  considered 
fraudulent  against  the  mortgagee  as  tending  to  hinder  and  delay 
him. 3  Of  course  the  mortgagee  is  not  affected  by  any  act  of  the 
mortgagor  in  passing  any  right  of  his  in  the  premises  to  third  per- 
sons,^ whether  by  deed,  or  by  confession  of  judgment,^  or  other- 
wise. The  mortgagor's  assignee  has  no  greater  rights  than  the 
mortgagor  himself ;  and  the  construction  of  the  mortgage  is  the 
same  in  every  respect,  whether  the  mortgagor  has  conveyed  the 
equity  of  redemption  or  not.^  Neither  can  the  mortgagor  and  his 
grantee,  by  any  subsequent  arrangement  between  themselves,  affect 
the  mortgagee's  lien,  or  prevent  its  operating  to  the  full  extent 
conferred  by  the  mortgage.'^ 

3.  His  Personal  Liahility  to  the  Mortgagee. 
Qll .  An  admission  or  recital  of  indebtedness  in  a  mortgage 
will  not  create  a  personal  liability  by  implication,  unless  it  be  ex- 
press and  unequivocal.^  The  mere  recital  of  the  consideration  is 
not  sufficient  to  create  such  liability.^  Lord  Chancellor  llardwicke 
said  of  such  a  mortgage,  that  "  there  did  not  appear  to  be  any  con- 
tract, either  express  or  implied,  for  the  payment  of  this  mortgage 

1  Oilman  v.  Wills,  6G  Me.  273;  Larkey  ^  Flanagan  v.  Westcott,  II  N.  J.  Eq. 
V.  Holbrook,  U  Met.  (Mass.)  458.  (3  Stock.)  264. 

2  Mardcu  r.  Jordan,  65  Me.  9,  ^  Kruse  i'.  Scripps,  11  111.  98. 

s  Hodson  V.  Treat,  7  Wis.  263;  Bu-  '  Hartley  v.  Harrison,  24  N.  Y.  170; 
chanan  v.  Monroe,  22  Tex.  537.  Frost  v.  Shaw,  10  Iowa,  491. 

*  Ellithorp  V.  Dewing,  1  D.  Chip.  (Vt.)  ^  Shafer  u.  Bear  River,  &c.  Mining  Co. 
141.  4  Cal.  294. 

»  Henry  v.  Bell,  5  Vt.  393. 
625 


§  678.]  A  mortgagor's  rights  and  liabilities. 

money .^  Although  there  be,  in  addition  to  the  recital  of  consid- 
eration, a  statement  in  the  condition  "  that  this  grant  is  intended 
as  security  for  the  payment  of  five  hundred  dollars  and  interest," 
no  admission  of  indebtedness  creating  a  personal  liability  is  im- 
plied.2  The  fact  that  the  mortgage  provides  for  a  policy  of  insur- 
ance as  additional  security,  or  that  it  contains  a  power  of  sale  to 
be  exercised  on  default,  or  that  it  contains  the  usual  clause  in 
regard  to  the  possibility  of  a  surplus  after  sale,  providing  that  it 
shall  be  paid  to  the  mortgagor,  does  not  impart  any  admission  to 
to  the  other  recitals.^  A  recital  that  the  mortgagor  was  indebted 
to  the  mortgagee  in  a  certain  sum,  which  should  have  been  paid 
on  the  first  day  of  January  preceding,  was  held  to  be  a  covenant 
to  pay  money,  and  that  an  action  of  debt  would  lie  for  it.*  A 
stipulation  in  a  mortgage  given  to  secure  a  note,  that  "general 
execution  shall  not  issue  therein,"  limits  the  remedy  to  the  mort- 
gaged property.^  A  stipulation  in  a  mortgage  given  by  a  corpo- 
ration to  secure  its  bonds,  that  the  trustees  should  sell  the  property 
at  the  request  of  the  holders  of  $100,000  of  its  bonds  when  due, 
does  not  prevent  an  action  by  any  bondholder  upon  the  bonds 
after  maturity.^ 

678.  No  covenant  to  pay  implied. — In  several  states  it  is 
provided  by  statute  that  no  mortgage  shall  imply  a  covenant  for 
the  payment  of  the  sum  secured  ;  and  that  when  there  is  no  ex- 
press covenant  for  such  payment,  and  no  separate  obligation  for 
the  debt,  the  remedy  of  the  mortgagee  is  confined  to  the  lands 
mortgaged."  Under  such  a  statute  when  the  mortgage  contains 
no  express  covenant  to  pay  the  debt  secured,  and  no  bond,  note, 
or  other  separate  instrument  has  been  given  for  it,  an  action  can- 
not be  maintained  upon  a  verbal  agreement  to  pay  the  debt.  The 
remedy  is  limited  to  the  land  described  in  the  mortgage.^ 

1  Howel  V.   Price,    1    P.  Wms.    292  ;        *  Couger  v.  Lancaster,  6  Yerg.  (Tenn.) 
Coleman  v.  Van    Renssalaer,    44    How.    477. 

(N.  Y.)  Pr.  368,  where  several  cases  are  &  Kennion  v.  Kelsey,  10  Iowa,  443. 

examined ;  and  the  case  of  Chase  v.  Ew-  6  Philadelphia,  &c.  R.  R.  Co.  v.  John- 

ing,  51   Barb.   (N.  Y.)    597,  is  criticised,  son,  54  Pa.  St.  127. 

See,  also.  Culver  v.  Sisson,  3  N.  Y.  264;  ^  California:  Civil  Code,  §  2928. 

Turk  r.  Ridge,  41  N.  Y.  201.  New  York  :  2  R.  S.  1875,  p.  1119. 

2  Severance  v.  Griffith,  2  Lans.  (N.  Y.j  Oregon  :  Gen.  Laws,  1874,  p.  516. 
38;  Coleman  v.  Van  Renssalaer,  supra.  Minnesota  :  Rev.  1866,  c.  40,  §  6. 

8  Coleman  v.  Van  Renssalaer,  supra.  ^  Van  Brunt  v.  Mismer,  8  Minn.  232. 

526 


AFTER    ACQUIRED    TITLES    AND   IMPROVEMENTS.  [§  679. 

But  a  note,  or  bond,  or  other  separate  obligation  ah-eacly  given 
for  the  payment  of  a  debt,  is  not  merged  or  extinguished  by  giv- 
ing a  mortgage,  or  a  deed  of  land  in  the  nature  of  a  mortgage,  for 
the  same  debt.^  The  mortgage  or  deed  becomes  merely  collateral 
security  for  the  payment  of  the  prior  obligation.  If  a  new  note 
or  bond  for  the  same  amount  be  given,  the  result  may  be  other- 
wise.- 

The  recitals  in  a  mortgage,  in  regard  to  the  indebtedness  se- 
cured, may  not  be  evidence  that  such  indebtedness  already  exists. 
The}^  rnay  refer  to  an  indebtedness  contemplated  by  the  parties  ; 
and  are  always  open  to  explanation.^  They  may  refer  to  a  past 
indebtedness  for  which  there  is  no  personal  liability  on  the  part 
of  the  mortgagor,  when,  of  course,  the  mortgage  gives  no  remedy 
beyond  a  resort  to  the  property  mortgaged.^  But  although  the 
recitals  i]i  the  mortgage  may  be  competent  evidence  against  the 
mortgagor  to  prove  the  consideration  of  the  note,^  yet  when  ne- 
gotiable, the  note  must  be  produced  before  judgment,  unless  its 
loss  or  destruction  be  shown. ^ 

4.  After  acquired  Titles  and  Improvements. 

679.  Subsequently  acquired  title  of  mortgagor.  —  It  is  a 
well  settled  rule  of  law,  that  a  title  subsequently  acquired  by  the 
mortgagor  enures  to  the  benefit  of  the  mortgagee  by  virtue  of  the 
covenants  in  his  mortgage,  and  is  subject  to  foreclosure ;  and  a 
subsequent  purchaser  from  the  mortgagor  under  his  after  acquired 
title,  having  notice  of  such  mortgage,  stands  in  no  better  position 
than  the  mortgagor  himself."  Neither  can  the  heirs  of  the  mort- 
gagor claim  the  benefit  of  the  subsequent  title  as  against  the  mort- 
gagee, when  the  mortgagor  himself  could  not  do  so.^  Where  one 
having  a  claim  to  land  in  Missouri,  under  a  Spanish  grant,  made  a 

1  Ligget  V.  Bank  of  Pa.  7  S.  &  R.  (Pa.)  6  Chewning  v.  Proctor,  2  McCord  (S. 
218;  Shaw  v.  Burton,  5  Mo.  478;  Wil-     C.)  Ch.  11. 

liamson  v.  Andrew,  4  Uar.  &  M.   (Md.)         ^  Teffl  v.  Munson,  G3  Barb.  N.  Y.  31  ; 

482.  Hitchcock   v.   Fortier,   65    111.    239;    Mc- 

2  Hall  v.  Hopkins,  14  Mo.  450.  Crackin  v.  Wright,  14  Johns.  194;  King 

3  Kceler  v.  Keeler,  11  N.  J.  Eq.  (3  v.  Gilson,  32  111.  348;  Gochenour  v. 
Stock.)  458;  Ellis  y.  Mcsscrvie,  1 1  Paige  Mowry,  33  III.  331;  Jones  v.  King,  25 
(N.  Y.),  467.  111.  388. 

*  Hone  V.  Fisher,  2  Barb.  (N.  Y.)  Ch.  »  Somes  v.  Skinner,  3  Pick.  (Mass.)  52, 
559.  58  ;  Wark  v.  Wiilard,  13  N.  H.  389. 

s  AVarner  v.  Brooks,  14  Gray  (Mass.), 
107. 

527 


§  680.]  A    MORTGAGOR'S   RIGHTS    AND    LIABILITIES. 

mortgage,  and  afterwards  Congress  confirmed  the  claim,  it  was 
held  that  the  confirmation  enured  to  the  benefit  of  the  mortgagee 
rather  than  to  the  benefit  of  his  heirs  solely.^  In  California  it  is 
declared  by  the  Code  that  a  title  subsequently  acquired  by  the 
mortgagor  enures  to  the  mortgagee  as  security,  in  like  manner  as 
if  acquired  before  the  execution.^ 

One  in  possession  of  land  under  a  contract  of  purchase  has  a 
mortgageable  interest.^  If  he  makes  a  mortgage  with  covenants  of 
warranty,  and  afterwards  acquires  the  legal  title  to  the  property, 
he  is  estopped  to  deny  that  he  had  title  at  the  time  of  the  mort- 
gage. A  recital  in  the  mortgage,  that  the  premises  are  the  same 
conveyed  to  the  mortgagor  by  the  person  who  is  the  vendor  in 
the  contract  of  sale,  will  estop  him  from  denying  the  validity  of 
the  mortgage  after  he  has  received  such  a  conveyance.  The  cove- 
nants of  warranty,  in  a  deed  to  him  by  the  vendor,  relate  only  to 
incumbrances  created  by  him,  and  not  to  those  created  by  the 
grantee  ;  and  therefore  would  not  estop  the  vendor  from  enforcing 
the  mortgage,  although  he  became  the  owner  of  it  before  the  giv- 
ing of  the  deed.* 

680.  A  mortgagor  cannot  by  acquiring  a  tax  title  upon  the 
land  defeat  the  lien  of  the  mortgagee.^  It  is  his  duty  to  pay  the 
taxes,  and  he  is  not  allowed  to  acquire  a  title  through  his  own 
default.  The  same  obligation  rests  upon  one  who  has  purchased 
the  land  of  the  mortgagor.  When  the  taxes  are  paid  by  one  who 
has  merely  a  lien  upon  the  land,  there  is  of  course  no  obligation 
upon  him  to  ])?ij  the  taxes ;  and  although  he  may  acquire  the  tax 
title  for  the  protection  of  his  own  lien,  he  is  not  allowed  to  set  up 
that  title  to  defeat  a  prior  lien.  The  land  is  regarded  as  a  common 
fund  for  the  payment  of  both  liens,  and  equity  regards  it  as  an 
act  of  fraud  for  him  to  acquire  a  title  to  the  land  for  an  inconsid- 
erable sum,  and  use  it  to  destroy  the  claim  of  the  prior  mortgagee 
to  the  land.*^ 

-  It  is  a  general  rule  that  any  one  interested  in  land  with  others, 
all  deriving  their  title  from  a  common  source,  will  not  be  per- 

1  Massey  v.  Papin,  24  How.  362.  ^  Fuller  v.  Hodgdon,  25  Me.  243  ;    Fair 

2  Civil  Code,    §    2930;    Amendments,  r.  Brown,  40  Iowa,  209 ;  Stears  v.  Hollen- 
1874,  p.  260.  beck,  38  Iowa,  550  ;  Porter  v.  Lafferty,  33 

3  Crane  v.  Turner,  7  Hun  (N.  Y.),  357.  Iowa,  254.     See  §  77. 

*  Judd  V.  Seekins,  62  N.  Y.  266.  ^  pair  v.  Brown,  40  Iowa,  209. 

528 


AFTER   ACQUIRED   TITLES   AND   BirROVEMENTS.  [§  681. 

mitted  to  acquire  an  absolute  title  to  the  land  by  a  tax  deed,  to 
the  injury  of  the  others.  The  mortgagor,  or  any  holder  of  the 
equity  standing  in  his  place  as  a  purchaser  or  second  mortgagee, 
cannot  set  up  such  title  against  the  prior  mortgagor.  ^  The  taking 
of  the  tax  title  in  such  case  is  regarded  primd  facie  merely  as  a 
redemption  of  the  land  from  the  tax  sale.  But  a  mortgagor  for 
purchase  money,  who  has  acquired  a  tax  title  which  the  mortgagee 
by  his  covenants  was  bound  to  remove,  may  set  up  as  an  offset 
in  a  foreclosure  the  amount  he  was  compelled  to  pay  for  the  title.^ 

As  already  noticed,  the  mortgagee  may  acquire  and  maintain 
title  to  the  premises  paramount  to  the  mortgagor,  by  purchase  at 
a  sale  for  taxes  or  under  a  prior  judgment  lien.-^ 

If  a  mortgage  containing  covenants  of  warranty  be  foreclosed, 
the  mortgagor,  by  buying  the  property  at  a  tax  sale  for  delinquent 
taxes  on  the  land  existing  at  the  time  of  the  mortgage,  cannot 
defeat  the  title  of  the  mortgagee,  or  of  the  purchaser  under  the 
foreclosui-e.* 

681.  Improvements  are  subject  to  the  mortgage.  —  Improve- 
ments made  with  the  consent  of  the  owner,  upon  land  subject  to 
a  mortgage  by  one  who  has  notice  of  it,  become  subject  to  the 
mortgage  in  the  same  manner  as  if  they  had  been  made  by  the 
mortgagor  himself.  If  a  corporation,  having  the  power  to  take 
the  land  by  condemnation,  make  improvements  before  exercising 
this  power,  the  mortgagee  cannot  be  deprived  of  the  benefit  of 
the  improvements  by  allowing  the  corporation  to  redeem  the  land 
by  paying  the  value  of  the  land  when  it  took  possession.^  It  is 
negligence  on  the  part  of  the  corporation  to  proceed  with  improve- 
ments without  first  either  obtaining  a  release  of  the  mortgage,  or 
condemning  the  interest  of  the  mortgagee  if  it  has  that  power. 
The  corporation  stands  in  the  relation  of  a  purchaser  with  notice 
of  the  mortgage,  it  being  duly  recorded,  and  it  cannot  have  an 
advantage  as  to  improvements  which  the  mortgagor  would  not 
have  had.  There  is  no  good  reason  for  discriminating  in  its  favor. 
To  give  a  purchaser,  with  such  notice,  this  right  would  enable 
him  to  obtain  from  the  mortgagee,  by  means   of  the  improve- 

1  Smith  t'.  Lewis,  20  Wis.  350  ;  Avery  3  §  672  ;  Sturdevant  v.  Miither,  20  Wis. 
V.  Judd,  21  Wis.  262.  57G. 

2  Eaton  V.  Tallmadge,  22  Wis.  526.  *  Porter  v.  Lafierty,  33  Iowa,  234. 

6  Booruem  v.  AVood,  27  N.  J.  Eq.  371. 
VOL.  I.  34  529 


§§  682,  683.]     A  mortgagor's  rights  and  liabilities. 

ments,  a  compulsory  release  at  the  value  of  the  land  at  the  time  of 
taking  possession. ^ 

The  mortgagor  is  not  entitled,  as  against  the  mortgagee,  to  be 
allowed  for  improvements  made  by  him  on  the  mortgaged  prop- 
erty .^ 

Neither  have  persons  furnishing  labor  and  materials  for  such 
improvements  any  claim  upon  the  mortgagee,  without  proof  of  a 
direct  or  implied  promise  on  his  part.^ 

682.  Mortgagor  estopped  to  deny  his  title.  —  A  mortgagor 
by  a  mortgage  containing  the  usual  covenants  of  seisin  and  war- 
ranty is  estopped  to  deny  the  title  of  the  mortgagee,*  and  he  is  as 
much  estopped  to  deny  the  title  of  a  subordinate  mortgagee  as 
to  deny  that  of  the  first.^ 

Where  a  mortgage  intended  for  the  security  of  the  school  funds 
was  executed  to  the  commissioner  of  that  fund,  after  the  office  was 
abolished,  it  was  held  that  the  mortgagor  was  estopped  to  deny 
the  official  character  of  the  grantee,  and  that  effect  should  be 
given  the  instrument.^ 

The  mortgagor  in  such  case  will  not  be  heard  to  say,  in  contra- 
diction of  his  covenant  of  warranty,  that  he  had  not  title  at  the 
date  of  the  conveyance,  or  that  it  did  not  pass  to  his  mortgagee 
by  virtue  of  his  deed.''^  Where  an  owner  of  land  made  a  second 
mortgage  with  covenants  of  warrant}^  and  the  first  mortgagee  en- 
tered and  authorized  the  mortgagor  to  occupy,  and  died  intestate, 
leaving  the  mortgagor  his  heir,  it  was  held  that  the  mortgagor  was 
not  entitled  to  possession  as  against  the  second  mortgagee,  either 
under  the  authority  of  the  first  mortgagee,  because  such  authority 
was  revoked  by  his  death,  or  by  descent  from  the  first  mortgagee, 
because  he  was  estopped  by  the  covenants  of  his  mortgage.^ 

683.  Mortgagor  estopped  to  deny  the  validity  of  mortgage 
in  the  hands  of  one  whom  he  has  induced  to  buy  it.  —  The 
doctrine  of  equitable  estoppel  is  also  applied  against  a  mortgagor 
who  has  induced  another  to  take  an  assignment  of  the  mortgage 

1  Booraem  v.  Wood,  supra.  ^  Floyd  County  v.  Morrison,  40  Iowa, 

2  Childs  V.  Dolan,  5  Allen  (Mass.),  319.     188  ;  Franklin  v.  Twogood,  18  Iowa,  516. 
8  Holmes  V.  Morse,  50  Me.  102.  ^  Tefft  v.  Munson,  57  N.  Y.  97. 

*  Cross  V.  Robinson,  21  Conn.  379.  ^  Lincoln  v.  Emerson,  108  Mass.  87. 

6  "Wires  v.  Nelson,  26  Vt.  13  ;  Bailey  v. 
Lincoln  Academy,  12  Mo.  174. 

630 


WASTE   BY   MORTGAGOR.  [§  G84. 

from  the  holder  of  it,  Upon  the  representation  that  it  is  a  good 
and  valid  security,  to  prevent  his  assailing  its  validity  in  the 
hands  of  such  assignee.  Having  by  word  or  act  induced  another 
to  part  with  his  money  for  the  security,  he  is  not  allowed  to  re- 
pudiate the  truth  of  his  representation,  and  escape  the  payment 
of  the  obligation,  by  showing  as  between  himself  and  the  former 
holder  of  it  that  it  was  invalid.^ 

One  wlio  has  made  a  mortgage  to  a  third  person  to  secure  notes 
payable  to  his  own  order,  which  he  has  delivered  to  the  mort- 
gagee without  indorsement,  thereby  admits  that  the  notes  are  valid 
securities  for  the  payment  of  money .^ 

Only  the  parties  to  a  mortgage,  and  those  in  privity  with  them, 
are  bound  by  or  can  take  advantage  of  an  estoppel  created  by  it.^ 
That  the  estoppel  cannot  bind  others  is  apparent  enough,  and  it 
is  only  a  little  less  apparent  that  one  is  not  bound  to  all  the  world 
to  make  good  what  he  has  said  in  his  deed  to  the  other  party  to 
it,  even  if  others  have  relied  upon  his  recital.* 

5.   Waste  hy  Mortgagor. 

684.  "Waste  by  mortgagor  may  be  restrained  by  injunction. 
A  mortgagor  in  possession,  who  is  about  to  cut  timber  or  com- 
mit other  waste  on  the  land,  to  an  extent  calculated  to  render  the 
security  inadequate,  may  be  restrained  by  injunction  ;  and  it  is 
not  necessary  to  allege  or  prove  his  insolvency.^  Whether  the 
mortgage  be  regarded  as  passing  the  legal  estate,  or  as  giving 
merely  a  lien  for  the  debt,  seems  not  to  be  regarded  by  the  courts 
in  giving  this  remedy  against  impairing  the  security.®     That  a 

1  Bush  V.  Cushman,  27  N.  J.  Eq.  131,  pesley  v.  Spencer,  5  Madd.  422  ;  Hum- 
par  Van  Fleet,  V.  C.  "  No  reference  to  phreys  v.  Harrison,  1  Jac.  &  W.  5S1  ;  Ad- 
books  is  necessary  in  vindication  of  a  prin-  ams  r.  Corriston,  7  Minn.  456  ;  Fairbank 
cipleso  clearly  fundamental  in  every  sys-  v.  Cudwortli,  33  Wis.  358.  In  Bunker  v. 
tern  of  laws  framed  to  promote  justice.  I  Locke,  15  Wis.  635,  the  complaint  averred 
refer  to  the  followinj;  authorities  simply  to  the  insolvency  of  the  mortgagor  ;  but  the 
show  how  the  doctrine  has  been  applied  :"  necessity  of  the  averment  was  not  passed 
Martin  V.  Righter,  2  Stockt.  (N.  J.)  525;  upon.  In  Robinson  v.  Russell,  24  Cal. 
Leer.  Kirkpatrick,l  McCarter  (N.J.)  267;  467,  the  acts  complained  of  were  the  re- 
Den  V.  Baldwin,  1  Zab.  (N.J.)  403.  moval  of    fruit  from  trees,  and  of  grow- 

2  Hartwell  v.  Blocker,  6  Ala.  581.  ing  nursery  stock;   and  the  court  held  the 

3  Bigelow  on  Estoppels,  269.  averment  of  the  mortgagor's  insolvency  to 
*  Mershon  v.  Mershon,  9  Bush  (Ky.),  633.  be  necessary,  on  the  ground  that  the  mis- 
6  Eden  on  Injunction,  p.  119;  2  Story     chief  was  not  irreparable. 

Eq.  Jur.  §  915  ;  Goodman  f.  Kine,  8  Beav.  ^  Brady  v.  Waldron,  2  Johns.  (N.  Y.) 
379  ;  Usborne  v.  Usborue,  Dick.  75;  Hip-     Ch.  148  ;  Salmon  v.  Clagett,  3  Bland.  Ch. 

531 


§  684.]  A  mortgagor's  rights  and  liabilities, 

mortgagee  has  the  legal  estate  may  be  one  ground  for  the  inter- 
ference of  a  court  of  equity  in  this  way  ;  but  the  right  of  the 
mortgagee  to  be  protected  in  his  security  is  a  ground  for  such  in- 
terference, whether  he  has  the  legal  title  or  not. 

In  some  states  an  injunction  to  restrain  waste  is  the  only  rem- 
edy. In  Connecticut  it  is  held  that  until  a  decree  of  foreclosure, 
and  the  expiration  of  the  time  limited  for  redemption,  the  mort- 
gagor is  not  liable  in  an  action  at  law  for  waste,  in  cutting  and 
carrying  away  wood  and  timber,  or  fixtures,  or  parts  of  build- 
ings ;  but  that  the  mortgagee's  remedy  is  by  an  injunction  in 
equity,  to  restrain  the  mortgagor  from  inpairing  the  security.^ 

In  states  where  the  possession  of  the  mortgaged  premises  is 
by  statute  assured  to  the  mortgagor  until  foreclosure,  the  mort- 
gagee has  no  right  to  take  possession  of  timber  cut  therefrom, 
whether  it  be  upon  the  premises  or  not ;  nor  can  he  maintain  an 
action  to  recover  the  possession  of  such  timber.  He  may,  per- 
haps, have  an  action  for  damages  against  a  person  who  wrong- 
fully and  knowingly  impairs  his  security ;  but  this  is  an  uncertain 
remedy,  as  compared  with  that  afforded  by  an  injunction  restrain- 
ing the  commission  of  waste ;  or  as  compared  with  the  remedy 
afforded  by  actions  at  law  for  the  recovery  of  the  property  re- 
moved from  the  mortgaged  premises,^  in  states  where  the  mort- 
gagee has  the  legal  title  and  right  of  possession. 

A  vendee  in  possession  under  a  contract  of  purchase  occupies 
in  some  respects  the  position  of  a  mortgagor,  and  he  may  be 
enjoined  in  the  same  manner  as  a  mortgagor  from  committing 
waste.^ 

Not  only  may  an  injunction  against  waste  of  the  mortgaged 
property  be  had  on  the  application  of  the  mortgagee,  but  also 
upon  the  application  of  any  one  who  stands  in  the  relation  of  a 
surety  of  the  mortgage  debt,  and  who  is  either  liable  personally 
for  its  payment,  or  whose  property  is  liable,  by  reason  of  being 
embraced  in  the  mortgage.  He  has  a  right  to  protect  the  prin- 
cipal fund  from  being  impaired,  and  to  save  himself  from  conse- 
quent loss.^ 

Instead  of   permanently  enjoining  a  mortgagor  from  cutting 

(Md.)    126  ;    Nelson  v.   Pinegar,  30   III.  »  McCaslin  v.  The  State,  44  Ind.  151. 

47.3.  4  Knarr  v.  Conaway,  42  Ind.  260,  265  ; 

1  Cooper  V.  Davis,  15  Conn.  556.  Johnson  v.  White,  11  Barb.  (N.  Y.)  194. 

2  Adams  v.  Corriston,  7  Minn.  456. 

632 


WASTE   BY    MORTGAGOR.  [§§  685,  686. 

timber,  the  court  may  under  some  circumstances  allow  him  to  cut 
it,  upon  his  securing  the  mortgagee  for  the  value  of  it ;  as  for  in- 
stance where  pine  woodland  had  been  burnt  over,  and  it  was 
proper,  both  for  the  permanent  benefit  of  the  estate,  and  in  order 
to  save  the  burnt  wood,  that  this  should  be  cut  off,  the  mortgagor 
was  allowed  to  proceed  to  do  so,  after  security  had  been  given 
for  the  value  of  the  wood,  as  fixed  by  a  reference  ordered  by  the 
court.i 

685.  An  injunction  will  not  ordinarily  be  extended  to  re- 
strain the  removal  of  timber  already  cut.  —  It  then  ceases  to 
be  part  of  the  realty,  and  being  converted  into  personal  prop- 
erty, trover  will  lie  for  it.  To  prevent  a  multiplicity  of  suits,  the 
courts,  in  granting  an  injunction  to  stay  the  commission  of  waste, 
have  sometimes  as  an  incident  to  that  decreed  an  account  for 
waste  already  done.^  "  It  would  seem,  then,"  says  Chancellor 
Kent,^  "  to  be  a  stretch  of  jurisdiction,  to  apply  the  injunction  to 
this  incidental  remedy,  and  to  stay  the  use  or  disposition  of  the 

chattel There  must  be  a  very  special  case  made  out  to 

authorize  me  to  go  so  far,  and  such  cases  may  be  supposed.  A 
lease,  for  instance,  may  have  been  fraudulently  procured  by  an 
insolvent  person,  for  the  very  purpose  of  plundering  the  timber 
under  shelter  of  it.  Perhaps,  in  that  and  like  cases,  while  the 
mischief  would  be  irreparable,  it  might  be  necessar}^  to  interfere 
in  this  extraordinary  way,  and  prevent  the  removal  of  the  tim- 
ber." 

686.  It  is  not  the  duty  of  a  mortgagee  to  enjoin  waste. 
But  although  it  is  the  right  of  a  mortgagee,  or  of  a  purchaser 
of  the  equity  of  redemption  of  a  part  of  the  mortgaged  property, 
to  enjoin  the  committing  of  waste,  it  is  not  the  duty  of  either  of 
them  to  do  so  ;  and  a  purchaser  of  a  part  of  the  mortgaged  prop- 
erty cannot  require  an  account  from  the  mortgagee  of  waste  com- 
mitted upon  other  portions  of  the  property  by  the  mortgagee  or 
others,  and  an  allowance  of  the  damage  done  in  part  satisfaction 
of  the  mortgage  debt.*     Such  purchaser  standing  in  the  position 

1  Brick  V.   Getsinger,    5    N.  J.  Eq.  (1  3  Watson  v.  Hunter,  5  Johns.   (N.  Y.) 
Halst.)  391.  Ch.  169. 

2  Jesus  College   v.  Bloom,  3  Atk.   262;  *  Knarr  v.  Conaway,  42  Ind.  260. 
Garth  v.  Cotton,  1    Ves.  528. 

633 


§  687.]  A  mortgagor's  rights  and  liabilities. 

of  a  surety  of  the  mortgage  debt  might  himself  obtain  such  in- 
junction. 

687.  A  mortgagee  entitled  to  possession  may  maintain 
trespass  for  waste.  —  A  mortgagee  not  in  actual  possession  may, 
after  condition  broken,  where  he  has  the  legal  estate,  maintain 
trespass  against  the  mortgagor  for  cutting  wood  and  timber  stand- 
ing on  the  premises.  It  is  regarded  as  an  injury  to  the  freehold 
rather  than  to  the  possession.  The  effect  of  the  mortgage  is 
to  vest  the  legal  estate  at  once  in  the  mortgagee,  and  the  right 
of  possession  also  immediately  passes,  unless  the  mortgagor  by 
stipulation  retains  the  right  of  possession  until  condition  broken  ; 
and  in  this  case,  after  condition  broken,  the  right  of  possession 
immediately  accrues  to  the  mortgagee.^  As  an  incident  to  the  right 
of  possession  follows  the  right  to  sue  in  trespass  for  any  injury  to 
the  freehold  by  strip  and  waste.^  The  possession  of  the  mort- 
gagor is  not  adverse  to  the  possession  of  the  mortgagee.  A  sec- 
ond mortgagee  may  maintain  the  action,  upon  a  discharge  of  tiie 
first  mortgage  subsequently  to  the  commission  of  the  waste,^  or 
upon  a  waiver  by  the  first  mortgagee  of  his  right  of  action. 

It  is  said  that  trespass  against  the  mortgagor  for  waste  will 
lie  for  acts  done  while  he  was  in  possession,  if  the  action  be 
brought  by  the  mortgagee  after  he  has  entered,  —  the  law  by  a 
kind  of  jus  post  liininii  supposing  the  freehold  all  along  to  have 
continued  in  him.^  After  a  mortgagee  has  entered  for  condition 
broken,  he  may  maintain  an  action  for  waste  done  by  a  tenant  for 
life  in  cutting  trees  before  the  entry,  —  and  before  any  breach  of 
condition  ;  and  it  is  no  defence  for  the  tenant  that  the  waste, 
which  consisted  in  cutting  down  trees  on  the  land,  was  committed 
by  a  stranger,  who  was  a  mere  trespasser.^ 

If  the  mortgagor,  after  condition  broken,  cut  timber  and  leave 
it  upon  the  mortgaged  premises  until  the  mortgagee  takes  pos- 
session, having  no  title  to  it  as  against  the  mortgagee,  he  is  liable 

1  Page  V.  Robinson,  10  Cush.  (Mass.)  ^  Sanders  w.  Reed,  12  N.  H.  58  ;  Smith  u. 

99;  Hapgood  v.  Blood,  11  Gray  (Mass.),  Moore,  11  N.  H.  .55;  Pettengill  v.  Evans, 

400.     In  Waterman  v.  Matteson,  4  R.  I.  5  N.  H.  54  ;  Stowell  v.  Pike,  2  Me.  387  ; 

539-543,  the  court  seemed  to   think  that  Smith   r.  Goodwin,  2  Me.  173;  Harris  v. 

trespass,  which  is  an    action   appropriate  Haynes,  34  Vt.  220 ;  Mitchell  v.  Bogan, 

only  to  an  injury  to  the  possession,  could  11  Rich.  (S.  C.)  686. 

not   be  maintained  by  a  mortgagee  who  ^  Sanders  v.  Reed,  supra. 

has  n^yer  had  possession.  *  Pettengill  v.  Evans,  5  N.  H.  54. 

6  Fay  V.  Brewer,  3  Pick.  (Mass.)  203. 

534 


WASTE   BY   MORTGAGOR.  [§  688. 

in  trespass  quare  clausum,  or  in  trover,  or  in  an  action  on  the  case 
in  the  nature  of  waste,  for  removing  it.^  If,  under  such  circum- 
stances, the  wood  be  attached  as  the  property  of  the  mortgagor 
and  sold  upon  execution,  the  purchaser  acquires  no  more  title 
than  the  mortgagor  had,  and  he  cannot  be  compelled  to  pay  the 
price  bid  for  it.^ 

But  before  the  condition  of  a  mortgage  is  forfeited,  the  mort- 
gagee is  not  entitled  to  an  action  of  waste  against  the  mort- 
gagor. Waste  is  an  injury  to  the  inheritance,  and  an  action 
for  waste  is  given  to  him  who  has  the  inheritance  in  expectancy. 
The  interest  of  the  mortgagee,  especially  before  the  mortgage  is 
forfeited,  is  contingent,  and  may  be  defeated  by  payment ;  and 
is  not  such  an  interest  as  will  sustain  the  action.^ 

688.  When  replevin  for  the  timber  cut  may  be  maintained. 
In  Rhode  Island  it  is  held  that  the  mortgagee  may  maintain 
replevin,  after  condition  broken,  against  the  mortgagor  in  posses- 
sion, for  wood  and  timber  cut  upon  the  mortgaged  premises,  when' 
this  results  in  wrongful  waste  and  in  substantial  diminution  of  the 
mortgaged  securitj^  The  court  considered  that  the  wrongful  act 
of  the  mortsaofor,  in  severing  the  timber  and  wood  from  the  free- 
hold,  could  not  deprive  the  mortgagee  of  his  right  to  it  under  the 
mortgage  as  security  for  the  debt.  The  wrong-doer  should  de- 
rive no  advantage  from  his  wrongful  act.* 

Under  a  different  view  of  the  nature  of  a  mortgage,  a  mort- 
gagee cannot  maintain  replevin  for  a  house  built  by  the  mort- 
gagor after  the  making  of  the  mortgage,  and  sold  and  removed 
by  a  purchaser  of  the  premises  before  foi-eclosure.  "If  such  an 
action  can  be  maintained,"  say  the  court,  "  a  mortgagee  may  re- 
cover from  the  purchasers  all  the  timber,  stone,  or  other  property 
severed  from  the  realty  and  sold  by  the  mortgagor,  though  its 
value  may  exceed  the  mortgage  debt  an  hundred  fold,  and  how- 
ever ample  the  security  may  remain  ;  although  it  is  quite  clear 
on  principle  and  authority  that  the  purchaser  of  property  so  re- 
moved by  the  mortgagor  cannot  be  liable  in  an  action  for  the 
waste  beyond  the  actual  loss  the  mortgagee  thereby  sustains."  ^ 

1  Hagar  r.  Brainerd,  44  Vt.  294  ;  Morcy        ^  Teterson   v.  Clark,  15  Johns.  (N.  Y.) 
V.  McGiiire,  4  Vt.  327  ;  Lull  i'.  Matthews,     205. 

19  Vt.  322  ;  Langdon  i-.  Paul,  22  Vt.  205.        *  Waterman  v.  Matteson,  4  R.  I.  539. 

2  Lull  V.  Matthews,  19  Vt.  322.  ^  ciark  i-.  Reyburn,  1  Kans.  281. 

535 


§§  689-691.]      A  mortgagor's  rights  and  liabilities. 

689.  Liability  of  a  purchaser  of  timber  from  the  mortgagor. 
The  mortgagee,  being  entitled  to  the  timber  cut  upon  the  mort- 
gaged premises,  may  claim  it  in  the  hands  of  a  purchaser  from 
the  mortgagor.^  He  may  retake  the  property  itself  from  such 
purchaser,  or  he  may  recover  the  value  of  it  from  him.  After  he 
has  notified  the  purchaser  of  his  right  to  the  property,  and  for- 
bidden his  paying  the  price  of  such  timber  to  the  mortgagor,  the 
latter  cannot  maintain  an  action  for  such  price.  The. mortgagee 
may,  however,  either  directly  or  indirectly,  waive  his  right  to  the 
timber  severed  from  the  land,  and  when  that  is  the  case  the  pur- 
chaser cannot  resist  paying  the  price  of  it  to  the  mortgagor,  from 
whom  the  purchase  was  made.  The  fact  that  the  mortgagee  acts 
for  the  mortgagor  as  his  agent  in  collecting  payment  for  the  tim- 
ber is  a  waiver  of  his  own  right.^ 

In  New  York,  and  probably  in  other  states  where  the  same 
doctrine  in  relation  to  the  nature  of  mortgages  prevails,  it  is  held 
that  the  title  to  the  wood  cut  from  mortgaged  land  vests  in  one 
who  has  purchased  and  cut  it  without  knowledge  of  the  lien  ;  and 
although  the  security  is  impaired,  and  the  mortgagee  has  after 
the  cutting  notified  the  purchaser  not  to  pay  the  purchase  money 
to  the  mortgagor,  he  cannot  recover  it  in  a  suit  against  the  pur- 
chaser after  he  has  so  paid  it  regardless  of  the  request.^  It  is 
only  when  the  purchaser  cuts  the  wood  with  knowledge  of  the 
lien,  and  with  the  intent  to  injure  the  holder  of  it,  that  he  is  lia- 
ble to  him  for  the  injury  done  the  security.* 

690.  Mortgagee  has  no  right  of  action  after  payment.  —  If 
the  mortgagee  purchase  the  mortgaged  premises  at  the  foreclosure 
sale,  for  the  full  amount  then  due  on  the  mortgage,  he  has  no 
claim  to  logs  previously  cut  upon  the  premises.^  When  he  has 
been  paid  his  debt  his  right  of  action  is  gone,  although  the  tres- 
pass upon  the  property  was  committed  before  the  payment.^ 

691.  Mortgagee  must  account  for  any  sum  recovered  for 
waste.  —  Of  course,  whatever  sum  the  mortgagee  may  recover 

1  Frothingham    v.   McKusick,    24   Me.         ^  Kimball  v.  Levviston,  &c.  Co.  55  Me. 

403;  Stowell  v.  Pike,  2  Me.  387;  Gore  v.  494. 

Jenness,  19  Me.  53  ;  Waterman  v.  Matte-         ^  Wilson  v.  Maltby,  59  N.  Y.  126. 
son,  4  R.  L  539;  Adams  v.  Corriston,  7         *  Van  Pelt  v.  McGraw,  4  N.  Y.  110. 
Minn.  456  ;  Bussey  v.  Page,  14  Me.  132.  ^  Berthold  v.  Holman,  12  Minn.  335. 


6  Kennerly  v.  Burgess,  38  Mo.  440. 


536 


WASTE    BY   MORTGAGOR.  [§§  692,  693. 

from  the  person  who  has  cut  timber  upon  the  mortgaged  estate, 
or  whatever  he  may  receive  from  the  sale  of  the  timber  itself, 
when  he  has  taken  possession  of  that,  he  must  account  for  upon 
the  mortgage  debt.^ 

692.  If  the  mortgagor  have  license  to  cut  timber,  of  course 
such  cutting  is  not  waste,  and  such  license  may  be  implied  from 
the  terms  of  the  mortgage,  as  in  the  case  of  one  given  as  security 
for  a  note  payable  in  wood,  in  which  it  was  provided  that  the 
mortgagor  was  "  not  to  cut  wood  or  timber  upon  the  said  estate, 
except  for  the  payment  of  said  note,  to  reduce  the  value  below  the 
amount  secured  with  interest  annually."  Even  after  a  breach  of 
the  condition  of  the  mortgage,  the  mortgagor  had  the  right  to 
cut  timber  to  any  extent,  provided  he  did  not  so  strip  the  land 
as  to  leave  it  of  less  value  than  the  amount  then  due  upon  the 
note.2 

Where  the  mortgagee  has  waived  his  right  to  the  timber  cut 
by  the  mortgagor,  or  has  directly  assented  to  his  cutting  it,  or 
his  assent  may  be  fairly  inferred  from  the  circumstances  of  the 
case,  he  cannot  afterwards  claim  it  or  treat  the  mortgagor  as  a 
trespasser.^ 

693.  Abuse  of  an  agreement  allowing  the  cutting  of  •wood. 
Where  there  is  an  agreement  that  the  mortgagor  may  cut  wood 
and  timber  from  the  mortgaged  premises,  the  court  will  not  allow 
an  abuse  of  the  privilege,  but  will  restrain  the  exercise  of  it  to  an 
extent  calculated  to  render  the  premises  an  insufficient  security.* 
But  there  must  be  an  allegation  in  the  bill,  and  proof  that  the 
land  would  not  be  an  adequate  security  for  the  payment  without 
the  timber.^ 

No  authority  to  commit  waste  by  cutting  off  wood  and  timber 
can  be  implied  from  the  fact  that  the  land  was  purchased  by  the 
mortgagor  for  improvement  for  villa  sites,  nor  from  the  price  paid 
for  it.6 

If  a  mortgagee  permit  the  owner  of  the  land  to  sell  the  wood 

1  Guthrie  y.  Kahle,  46  Pa.  St.  331.  507,   511,    and    cases    cited;  Biickout  v. 

2  Ingell  V.  Fay,  112  Mass.  451.  Swift,  27  Cal.  433  ;  Hill  v.  Gwin,  51   Cal. 
8  Smith  V.  Moore,  11  N.  H.  55.                    47. 

*  Emmons  v.  Hinderer,  24  N.  J.  Eq.  39 ;  6  Coggill  v.  Millburn  Land  Co.  25  N. 
Ensign  v.  Colburn,  11  Paige  (N.  Y.),  503.     J.  Eq.  87. 

5  Van  Wyck  v.  Alliger,  6  Barb.  (N.  Y.)  ^ 

537 


§§  694,  695.]        A  mortgagor's  rights  and  liabilities. 

under  an  agreement  that  the  purchase  price  shall  be  paid  to  him, 
and  the  purchaser,  without  knowledge  of  the  lien,  goes  on  to  cut 
the  wood,  he  is  then  under  no  legal  duty  to  defer,  at  the  mort- 
gagee's request,  paying  the  price  of  the  wood  to  the  owner,  and 
no  legal  proceedings  having  been  taken  to  prevent  it,  payment  to 
him  is  a  valid  discharge  of  the  debt.^ 

694.  Mortgagor's  right  to  wood  for  his  own  fires.  —  The 
mortgagor  in  possession  of  a  farm,  after  condition  broken,  may 
cut  wood  for  his  own  fires,  for  repairing  fences,  and  for  other  pur- 
poses, according  to  the  well  known  and  existing  usages  of  ordi- 
nary husbandry  .2 

"  The  well  known  and  existing  usages  as  to  the  mode  of  carry- 
ing on  a  farm  to  which  a  wood  lot  is  attached,  both  as  to  the  cut- 
ting of  suitable  wood  for  fires,  and  of  timber  for  repairing  fences, 
are  not  to  be  overlooked,  and  they  may  furnish  justification  for 
such  acts."  ^ 

And  if  he  cut  wood  in  good  faith  for  his  own  use  as  fire-wood, 
before  condition  broken,  as  he  may  rightfully  do,  the  title  to  it  is 
not  changed  by  the  subsequent  foreclosure  of  the  mortgage  while 
the  wood  still  remains  upon  the  ground,  and  the  mortgagor  may 
remove  it  without  being  held  in  trover  for  so  doing.* 

695.  Mortgagee's  right  of  action  against  mortgagor  for 
injury  to  the  property.  —  The  mortgagor,  or  the  owner  of  the 
equity,  has  no  more  right  than  a  stranger  to  impair  the  security  of 
the  mortgagee  by  removal  of  buildings  or  fixtures,  thereby  caus- 
ing substantial  and  permanent  injury  and  depreciation  to  the  se- 
curity. The  mortgagee's  right  of  action  in  such  case  is  based 
upon  his  interest  in  the  property  ;  and  the  damages  are  measured 
by  the  extent  of  the  injury,  and  not  by  the  extent  of  the  insuffi- 
ciency of  the  remaining  security.  Although  the  property  in  its 
damaged  condition  be  of  sufficient  value  to  satisfy  the  mortgage 
debt,  he  is  entitled  to  damages  all  the  same.  It  is  his  right  to 
hold  the  entire  mortgaged  estate  for  the  full  payment  of  his  de- 
mand.^ 

1  Wilson  V.  Maltby,  59  N.  Y.  126.  3  Per  Dewey,  J.,  in  Hapgood  v.  Blood, 

2  Hapgood  V.  Blood,  11   Gray  (Mass.),     supra. 

400  ;  Page  v.  Rohiuson,  10  Cush.  (Mass.)         *  Wright  v.  Lake,  30  Vt  206. 
102;  Smith  u.  Moore,  II  N.  H.  62.  ^  Byrom   v.    Chapin,    113    Mass.    308; 

538 


WASTE   BY    MORTGAGOR.  [§  696. 

If  a  prior  mortgagee  settle  in  good  faith  and  for  a  reasonable 
sum  paid  in  satisfaction  for  the  injury,  the  claim  of  a  subsequent 
mortgagee  is  discharged,  and  his  right  of  action  for  the  injury 
barretl  ;  but  it  is  competent  for  him  to  show  that  the  articles  so 
removed  wei'e  of  greater  value  than  the  sum  paid  in  satisfaction 
to  the  first  mortgagee  ;  and  also  to  shovr  that  the  damage  caused 
the  premises  was  greater  than  that  sum.^ 

When  fixtures  are  severed  from  the  mortgaged  property  by  the 
mortgagee  without  the  consent  of  the  mortgagor,  in  a  state  where 
the  rule  is  that  the  title  and  right  of  possession  remain  in  the 
mortgagor  until  foreclosure,  the  mortgagor  may  recover  damages 
for  the  trespass  committed  by  the  persons  who  I'emoved  the  fixt- 
ures. The  fact  that  the  mortgage  was  afterwards  foreclosed  and 
the  property  bought  by  the  mortgagee,  and  conveyed  to  him  by 
the  sheriff,  does  not  affect  the  case  ;  because  the  fixtui-es  having 
been  removed,  they  are  freed  from  the  operation  of  the  mortgage, 
and  the  foreclosure  does  not  affect  them.  The  title  to  the  fixtures 
was  in  the  mortgagor  at  the  time  they  were  severed  from  the  free- 
hold, and  he  is  entitled  to  recover  their  value. ^ 

A  mortgagee  may  have  an  action  for  injury  done  to  the  mort- 
gaged property  by  a  mob.  If  he  has  foreclosed  his  mortgage  after 
the  damage  was  done,  and  has  himself  become  the  purchaser  at 
the  sale,  in  order  to  recover  he  must  prove  not  only  the  injury 
to  the  property,  but  his  own  loss  of  a  part  of  the  mortgage  debt 
in  consequence.^ 

696.  Remedy  for  a  fraudulent  or  wilful  injury  to  the  secu- 
rity. —  When  the  mortgagee  has  not  such  possession  of  the  mort- 
gaged premises  as  will  enable  him  to  maintain  trespass  for  a 
wrongful  or  fraudulent  injury  to  the  premises  whereby  his  secu- 
rity is  impaired,  he  may  have  an  action  on  the  case  against  the 
mortgagor  or  other  person  who  has  committed  the  wrongful  act.* 
Thus  a  purchaser  from  the  mortgagor,  who,  with  knowledge  of 
the  mortgage  and  of  the  mortgagor's  insolvency,  takes  away  the 
fences   and  cuts  down  and  carries  away  valuable  timber,  is  liable 

Gooding  I'.  Shea,  103  Mass.  360  ;  Wood-  of  a  stamp  battery,  and  a  mortar  block  be- 

ruff  V.  Halsey,  8  Pick.  (Mass.)  333.  longing  to  a  mill. 

1  Byrom  v.  Chapin,  113  Mass.  308.  ^  L^vy  v.  New  York,  3  Robt.  (N.  Y.) 

2  Hill  V.  Gwin,  51   Cal.  47.     The  fixt-  194. 

ures   removed  were  certain  stamps,  part        *  Yates  r.  Joyce,  11  Johns.  (N.  Y".)  136; 

Lane  v.  Hitchcock,  14  lb.  213. 
539 


§  697.]  A  mortgagor's  rights  and  liabilities. 

to  such  action  ;  and  in  order  to  sustain  the  action,  it  is  not  nec- 
essary to  show  that  the  defendant's  motive  was  to  injure  the  plain- 
tiff's security.  He  is  presumed  to  intend  the  necessary  conse- 
quences of  his  acts.^  To  sustain  such  action  it  must  be  alleged 
and  proved  that  the  mortgagee's  security  is  actually  impaired  ; 
that  the  security  after  the  injury  is  insufficient,  and  that  the  mort- 
gagor is  insolvent.  Consequentlj'-,  where  it  appeared  in  an  action 
against  a  purchaser  from  the  mortgagor  for  removing  buildings 
from  the  mortgaged  premises  after  they  had  been  advertised  for 
sale  under  a  power,  that  the  property  was  worth  more  than  the 
mortgage  debt,  the  action  was  not  sustained.^ 

It  has  been  held  that  a  mortgagee  has  not  such  a  direct  title  to 
the  property  as  to  enable  him  to  maintain  an  action  against  a  third 
person  for  an  injury  done  the  premises  through  his  negligence, 
though  he  might  do  so  if  the  injury  were  done  with  the  express 
intent  to  damage  the  premises,  the  mortgagor  being  unable  to 
pay  the  debt ;  thus  an  action  cannot  be  maintained  by  him  for- 
negligently  removing  earth  from  a  hill  adjoining  the  mortgaged 
premises  in  such  a  manner  as  to  allow  the  earth  to  slide  down 
upon  the  premises  and  injure  them,  although  it  might  be  main- 
tained if  the  act  had  been  done  fraudulently,  with  the  intent  to 
injure  the  mortgagee.^ 

697.  Emblements. —  The  mortgagor,  until  foreclosure  or  pos- 
session taken  by  the  mortgagee,  is  entitled  to  emblements,  and 
when  they  are  severed,  has  an  absolute  right  to  them  without  any 
liability  to  account  for  them.  They  are  covered  by  the  mort- 
gage until  severance,  but  belong  to  the  mortgagor  afterwards.'*  A 
mortgagee  not  in  possession  cannot  therefore  maintain  trespass 
quare  clausum  against  one  who  cuts  and  removes  the  grass.^ 

Trees  and  shrubs  planted  in  a  nursery  for  the  purpose  of  culti- 
vation and  growth,  until  they  are  fit  to  be  sold  and  transplanted, 
pass  by  a  mortgage  of  the  land,  so  that  the  mortgagor  cannot 
remove  them  as  personal  chattels.^     But  if  the  mortgagee  had 

1  Van  Pelt  v.  McGraw,  4  N.  Y.  110.  Gillett  v.  Balcom,  6  Barb.  (N.  Y.)  370; 

2  Lane  v.  Hitchcock,  14  Johns.  (N.  Y.)  Cooper  v.  Cole,  38  Vt.  185;  Brown  v. 
213.  Thurston,  56  Me.  126. 

3  Gardner  v.  Heartt,  3  Den.  (N.  Y.)  232.         ^  Hewes  v.  Bickford,  49  Me.  71 ;  Wood- 
*  Woodward  v.  Pickett,  8  Gray  (Mass.),     ward  v.  Pickett,  supra ;  Page  v.  Robinson, 

617;  Colman   v.  Duke  of  St.  Albans,  3     10  Cush.  (Mass.)  99. 

Ves.  Jun.  25 ;  Toby  v.  Reed,  9  Conn.  216  ;        6  Maples  v.  Millon,  31  Conn.  598. 

640 


WASTE   BY   MORTGAGOR.  [§  698. 

notice  that  the  trees  belonged  to  a  firm  of  which  the  mortgagor 
was  a  member,  though  planted  on  his  land  with  his  assent,  the 
firm  has  the  right  to  remove  them.^ 

A  mortgagor  compelled  to  surrender  the  estate  is  not,  like  a 
tenant  at  will,  entitled  to  emblements.  The  mortgagee  may  evict 
him  without  notice,  and  retain  the  emblements.^  A  lessee  hold- 
ing under  the  mortgagor  by  a  lease  granted  subsequently  to  the 
mortgage,  and  without  the  mortgagee's  concurrence,  has  no  greater 
rights  than  the  mortgagor  ;  and  when  evicted  by  the  paramount 
title  of  the  mortgagee,  as  he  may  be  without  notice,  he  cannot  re- 
tain the  emblements.^  A  purchaser  at  a  foreclosure  sale  is  entitled 
to  the  crops  growing  at  the  time  of  the  sale,,  and  ma}^  maintain 
trespass  against  the  mortgagor  or  his  lessee  for  taking  and  carrying 
them  away.^  If  the  mortgagor  become  the  purchaser  at  such  sale 
he  may  maintain  the  action.^  Moreover,  the  purchaser  at  the 
foreclosure  sale  may,  by  injunction,  restrain  the  mortgagor  from 
taking  the  crops,  and  may  restrain  his  creditor  from  proceeding 
under  execution  to  levy  upon  them.^ 

After  a  foreclosure  sale  the  mortgagee  is  not  entitled  to  the 
crops  growing  at  the  time,  as  against  the  purchaser." 

698.  But  he  may  waive  this  right.  —  A  mortgagor  who  was 
in  default  sowed  a  field  on  the  mortgaged  premises  with  rye.  He 
died,  and  his  administrator  sold  the  crop.  Before  it  was  taken 
off,  the  mortgage  was  foreclosed  under  a  power  of  sale,  and  at 
the  sale  the  auctioneer  announced  that  the  vye  having  been  sold 
was  reserved.  The  purchaser  at  the  mortgage  sale  claimed  the 
crop ;  but  hew  as  adjudged  not  entitled  to  it,  though  he  would 
have  been  had  it  not  been  expressly  excepted.^ 

1  King  V.  Wilcomb,  7  Barb.  (N.  Y.)  263.  gagee  is  not  bound  to  .sell  the  mortgaged 

2  Downard  v.  GrofF,  40  Iowa,  597  ;  Gil-  premises  in  parcels  unless  they  are  in  the 
man  v.  Wills,  66  Me.  273.  mortgage  described  in  j)arcels,  yet  I  have 

3  Jones  V.  Thomas,  SBlackf.  (Ind.)  428.  no  doubt  he  may  do  so  where  the  premises 

*  Shepard  v.  Philbrick,  2  Den.  (X.  Y.)  are  so  situated  that  he  can  sell  in  jiarcels  j 
174  ;  Downard  v.  Groff,  40  Iowa,  597.  and  in  such  a  case,  when  he  has  sold  land 

5  Lane  v.  King,  8  Wend.  (N.  Y.)  584.       enough   to  satisfy  his  mortgage,  he  need 

6  Crews  V.  Pendleton,  1  Leigh  (Va.),  sell  no  more;  and  in  such  a  case,  if  any 
297.  one  can  complain  of  a  sale  by  parcels,  and 

■^  Aldrich  v.  Reynolds,  I  Barb.  (N.  Y.)  seek  to  avoid  the  foreclosure,  it  certainly 

Ch.  613.  cannot  be  a  purchaser,  but  must  be  some 

*  Sherman  v.  Willett,  42  N.  Y.  146.  one  at  the  time  interested  in  the  equity  of 
Chief  Justice  Earle  said :  "  While  a  mort-  redemption.     When  it  is  admitted  that  a 

541 


§  698.] 


A  mortgagor's  rights  akd  liabilities. 


mortgagee  can  release  a  portion  of  the 
premises  and  sell  the  remainder,  although 
they  are  described  as  a  whole  in  the  mort- 
gage, I  do  not  see  why  he  may  not  sell 
the  same  portion  before  releasing  any.  In 
this  case,  the  mortgage  was  a  lien  upon 
the  whole  premises,  including  the  rye,  and 
at  the  time  of  sale,  the  mortgagee  an- 
nounced that  he  would  not  sell  the  rye, 

542 


but  would  sell  the  balance.  The  purchaser 
knew  this,  and  bid  with  this  understand- 
ing. The  rye  was  not  sold.  The  pur- 
chaser did  not  buy  it.  How  can  he  claim 
it  ?  If  the  sale  was  void  because  not  reg- 
ularly made,  and  because  the  entire  prem- 
ises were  not  sold,  then  certainly  the  de- 
fendant has  no  standing  upon  which  he 
can  base  any  claim  to  the  rye." 


CHAPTER  XVI. 

A  mortgagee's  rights   AMD  LIABILITIES. 

1.   The  Nature  of  his  Estate  or  Interest. 

699.  The  mortgagee  is  not  in  a  general  sense  the  owner  of 
the  mortgaged  estate,  although,  as  ah'eady  noticed  under  the  com- 
mon law  doctrine,  he  holds  the  legal  title  to  the  estate. ^  Before 
foreclosure  he  can  be  regarded  as  the  owner  only  in  a  very  limited 
sense.  A  mortgage  of  certain  lands,  "with  all  the  other  lands  I 
own  in  the  town  of  Norfolk,"  was  held  not  to  pass  the  title  to  land 
which  the  grantor  held  by  a  deed  absolute  in  its  terms,  which 
was  in  fact  a  mortgage,  though  the  defeasance  by  a  separate  in- 
strument had  not  been  recorded.^  For  some  purposes,  however, 
he  may  be  regarded  as  an  owner  after  he  has  taken  possession  ;  ^ 
but  before  he  has  taken  possession  it  seems  that  there  is  no  sense 
in  which  he  could  be  so  regarded,  unless  it  be  with  reference  to 
a  proceeding  to  enforce  his  rights  as  mortgagee.^ 

700.  A  mortgage  before  foreclosure  is  completed  is  per- 
sonal assets,  and  upon  the  death  of  the  mortgagee  vests  in  his 
executor  or  administrator.  The  mortgage  can  be  transferred  or 
foreclosed  only  by  the  executor  or  administrator.  A  quitclaim 
deed  by  the  heir  at  law  passes  no  title  whatever  in  the  premises,^ 
although  such  a  deed  by  the  executor  or  administrator  would 
transfer  the  mortgage  interest  by  way  of  assignment ;  ^  and  even 
if  the  heir  at  law  be  at  the  same  time  administrator  his  deed  will 
not  operate  as  an  assignment  of  the  mortgage,  if  he  does  not  con- 

1  §§  11-59.  effect  of  such  evidence  would  have  been  is 

2  Mills  V.    Shepard,  30  Conn.  98.    In    left  in  doubt. 

this  case  there  was  no  proof  that  the  mort-         ^  Lowell  v.  Shaw,  15  Me.  242. 
gagee  had  examined  the  records  and  had        *  Great  Falls  Co.  v.  Worster,  15  N.  H. 
taken  the  mortgage  relying  upon  the  se-     412;  Norwich  v.  Hubbard,  22  Conn.  587. 
curity  of  the  land  in  question.     What  the         ^  Connor  v.  Whitmore,  52  Me.  185. 

6  Collamer  v.  Langdon,  29  Vt.  32. 
543 


§  701.]  A  mortgagee's  rights  and  liabilities. 

vey  in  the  capacity  of  administrator.^  The  mortgage  title  vests 
in  the  personal  representative,  who  may  without  any  order  of 
court  assign  or  discharge  it,  or  take  possession  of  the  property,  or 
proceed  to  foreclose  it  by  suit.^  When  foreclosure  is  had  by  entry 
and  possession,  or  by  strict  foreclosure,  the  title  to  the  property 
upon  the  completion  of  the  foreclosure  may  ultimately  vest  in  the 
heir  at  law  ;  but  it  vests  in  him  as  a  distributee  of  the  personal 
estate,  and  is  first  subject  to  the  payment  of  the  debts  of  the  de- 
ceased. The  fact  that  there  are  no  outstanding  debts  does  not 
show  that  the  title  of  the  administrator  is  terminated  ;  but  a 
decree  of  distribution  is  necessary  for  this,  and  to  determine  in 
whom  the  property  shall  vest  after  the  trust  in  him  is  satisfied.^ 
The  heirs  of  a  mortgagee  have  no  right  as  such  to  enter  for  con- 
dition broken,  or  to  take  any  action  to  enforce  jDayment  of  the 
mortgage.  The  debt  belongs  to  the  executor  or  administrator, 
and  the  mortgage,  which  is  security  for  the  debt,  equally  belongs 
to  him.*  If  the  heir  cuts  and  carries  away  wood  and  timber 
from  the  mortgaged  premises,  he  is  liable  in  trespass  to  the  admin- 
istrator of  the  mortgagee,  who  is  in  possession  by  entr}'  or  judg- 
ment for  foreclosure.^ 

701.  The  interest  of  a  mortgagee  cannot  be  levied  upon  or 
attached  for  his  debts  before  foreclosure.  Some  of  the  earlier 
cases  only  decide  that  the  interest  of  the  mortgagee  before  entry 
is  not  attachable  ;  but  as  all  the  inconveniences  that  would  attend 
an  attachment  before  entry  continue  until  foreclosure  is  complete, 
the  law  seems  to  have  become  settled  that  no  attachment  of  the 
mortgagee's  interest  can  be  made  till  foreclosure.^  While  the  right 
of  redemption  remains,  the  mortgagor  might  be  much  embarrassed 
by  the  levy  of   executions.     Until  this  happens,  the  mortgaged 

1  Douglass  V.  Darin,  51  Me.  12L  v.  Willard,  4  Johns.  (N.  Y.)  41  ;  Runyan 

2  Collamore  v.  Langdon,  supra;  Web-     v.  Mersereau,  11  lb.  534;  Jackson  v.  Du- 
ster V.  Calden,  56  Me.  204.  bois,  4  lb.  216  ;  Hitchcock,  v.  Harrington, 

3  Taft?;.  Stevens,  3  Gray  (Mass.),  504.      6  lb.  290;  Collins  v.  Torry,  7  lb.  278; 
*  Smith  V.  Dyer,  16  Mass.  18;  and  it  is     Huntington  v.  Smith,  4  Conn.  235;  Fish 

so  provided  by  statute  in  this  state.     Gen.  v.  Fish,  1    Conn.  559  ;  Cooch  v.  Gerry,  3 

Stat.  c.  96,  §§  9,  10.  Har.  (Del.)  280;  Brown  v.  Bates,  55  Me. 

5  Stevens  v.  Taft,  11  Cush.  (Mass.)  147.  520;  Johnson  v.  Hart,  3  Johns.  Cas.  (N. 

^  Marsh  v.  Austin,  1  Allen  (Mass.),  235  ;  Y.)  329.     For  an  argument  that  the  raort- 

Portland   Bank   v.    Hall,   13    Mass.  207  ;  gagee's  estate  is  subject  to  attachment,  see 

Blanchard  v.  Colburn,  16  Mass.  345  ;  Eaton  Notes  of  Mortgages,  by  Judge  Trowbridge, 

i;.  Whiting,  3  Pick.  (Mass.)  484  ;  Jackson  8  Mass.  Supplement,  pp.  554,  565. 

544 


THE  NATURE   OF   HIS   ESTATE   OR   INTEREST.  [§  702. 

premises  continue  to  be  real  estate  in  the  hands  of  the  mortgagor, 
and  liable  to  be  sold  on  execution  against  him. 

702.  When  the  mortgagee  is  entitled  to  possession.  —  The 
legal  estate  being  vested  in  the  mortgagee,  in  the  absence  of  any 
agreement  to  the  contrary,  he  may  enter  upon  the  estate  under 
his  deed,  even  before  condition  broken,  and  may  maintain  an 
action  against  the  mortgagor  as  a  trespasser,  or  in  a  writ  of  entry 
recover  against  him  as  a  disseisor,  if  he  refuse  to  j'ield  possession. 
The  mortgagee  has  the  remedies  of  an  owner  for  the  purpose  of 
enforcing  his  lien  against  the  mortgagor  or  any  one  claiming  under 
him,  but  he  has  them  for  this  purpose  only.^ 

It  has  already  been  noticed  that  in  several  states  the  mort- 
gagee's right  before  foreclosure  to  maintain  ejectment  against  the 
mortgagor,  or  to  recover  possession  in  any  way,  has  been  taken 
away  by  statute.  But  this  right  of  possession  being  imphed  by 
law  in  all  mortgages  executed  prior  to  the  passage  of  such  a  stat- 
ute, it  is  therefore  inoperative  as  to  mortgages  of  prior  execution.  ^ 

But  even  under  such  statutes  it  is  generally  held  that  a  mort- 
gagee, who  has  gone  into  peaceable  possession  of  the  premises  after 
a  default,  cannot  be  ejected  by  the  mortgagor  while  the  mortgage 
remains  unsatisfied.^  Any  one  who  has  entered  into  possession 
under  the  direction  of  the  mortgagee  becomes  his  tenant,  and  has 
the  same  rights  as  the  mortgagee  to  retain  possession  as  against  the 
mortgagor.  The  assignee  of  a  mortgage  has  all  the  rights  of  the 
mortgagee  as  to  possession,  and  may  defend  his  possession  by 
showing  his  mortgage  without  a  foreclosure.* 

1  Erskine  v.  Townsend,  2    Mass.  493  ;  ard  v.  Houghton,  64  Me.  44.5  ;  Treat  v. 

Goodwin   v.    Kichardson,    11    Mass.  473;  Pierce,  53  Me.  77;  Den  v.  Stockton,  12 

Newall  V.  Wright,  3  Mass.  155  ;  Green  v.  N.  J.  L.  (7  Halst.)  322 ;  Ely  v.  M'Guire,  2 

Kemp,  13  Mass.  518;  Bradley  v.  Fuller,  Ohio,  223;    Clark    v.  Rcyburn,  1    Ivans. 

23   Pick.   (Mass.)    9;    Smith   v.  Johns,  3  281. 

Gray    (Mass.),    517;    Fay   v.   Brewer,   3  2  Blackwood   v.  Van   VIeet,    11    Mich. 

Pick.    (Mass.)    203;    Flagg  v.  Flagg,  11  252.     Applicable  only  to  suits  commenced 

lb.  475;  Blanchard  t;.  Brooks,  12  lb.  47,  afterwards.     Shaw  v.  Iloadley,  8  Blackf. 

57  ;  Fay  v.  Cheney,  14  lb.  399;  Shute  v.  (Ind.)  165  ;  Grimes  v.  Doe,  lb.  371  ;  Mor- 

Grimes,   7   Blackf.    (Ind.)    1  ;    Brown    v.  gan  v.  Woodward,  1  Ind.  321. 

Stewart,  I   Md.  Ch.  87 ;  Walcop  v.  Me-  ^  IJennesy  v.  Farrell,  20  Wis.  42. 

Kinney,  10  Mo.  229;  Jackson  v.  Dubois,  *  Sahler  v.  Signer,    44   Barb.  (N.  Y.) 

4  Johns.  (N.  Y.)  216 ;  Jackson  v.  Hull,  10  606  ;  Minkler  v.  Minkler,   10  Johns.  (N. 

lb.  481  ;  Furbush  v.  Goodwin,  29  N.  H.  Y.)  480  ;  Merrit  v.  Bowen,  7  Cow.  (N.  Y.) 

321 ;  Allen  v.  Parker,  27  Me.  531  ;  How-  13  ;  Phyfe  v.  Riley,  15  Wend.  (N.  Y.)  248. 

VOL.  I.                                      35  545 


§  703.]  A  mortgagee's  rights  and  liabilities. 

703.  A  mortgagee  cannot  be  disseised  by  the  mortgagor.^  — 
His  possession  is  not  adverse ;  it  is  presumed  to  be  in  subordina- 
tion to  the  title  of  the  mortgagee.  He  can  do  no  act  prejudicial 
to  the  mortgagee's  title.  He  cannot  bind  the  mortgagee  by  any 
contract  or  lease  respecting  the  premises.  All  his  acts  are  subject 
to  the  mortgagee's  rights  ;  and  his  possession  is  not  adverse,  ex- 
cept the  mortgagee  elect  so  to  regard  it  for  the  sake  of  his  rem- 
edy to  obtain  possession.  The  mortgagee  may  treat  any  person 
found  in  possession  of  the  mortgaged  premises  without  a  title  good 
against  him  as  a  disseisor.^ 

But  a  mortgagee  as  well  as  a  mortgagor  may  be  disseised  by  a 
stranger ;  provided  there  be  an  actual  ouster  and  exclusive  occu- 
pation, and  not  a  qualified  and  occasional  use  of  the  land.  While 
such  disseisin  continues  the  mortgagee's  deed  will  not  pass  his  in- 
terest in  the  land.  The  disseisin  of  the  mortgagor  is  also  a  dis- 
seisin of  the  mortgagee.  This  is  so  even  before  the  mortgagee 
has  made  actual  entry,  and  though  he  has^no  notice  whatever  of 
the  disseisin.  An  exclusive  and  adverse  occupation  of  the  estate 
by  a  stranger  under  a  claim  of  title  operates  to  disseise  both  the 
mortgagor  and  mortgagee,^  and  while  this  continues  the  mortgagee 
cannot  make  a  valid  assignment  of  his  mortgage.^  If,  however, 
the  equity  of  redemption  be  sold  by  the  sheriff  on  execution 
while  the  mortgagor  is  disseised,  the  sale  is  not  void,  but  the  pur- 
chaser by  the  sheriff's  deed  acquires  a  seisin  in  law,  which  gives 
him  a  right  of  entry,  and  after  actual  entry  he  may  maintain  a 
writ  of  entry. 

But  exclusive  possession  by  the  mortgagor,  with  a  claim  of  ex- 
clusive ownership,  does  not  in  itself  amount  to  a  disseisin  of  the 
mortgagee  so  as  to  invalidate  a  power  of  sale  contained  in  the 
mortgage. 

Disseisin,  like  seisin,  once  proved  is  presumed  to  continue  until 
the  contrary  is  shown.     Possession  under  a  disseisor  is  presumed 

1  Hunt  V.  Hunt,  U  Pick.  (Mass.)  374  ;  2  Wheeler  v.  Bates,  21  N.  H.  460;  Poig- 

Shepard  v.  Pratt,  15   lb,  32  ;  Colton   v.  nand  v.  Smith,  8  Pick.  (Mass.)  272. 

Smith,  11  lb.  311  ;  Herbert  v.  Hanrick,  16  3  Dadmun  v.  Lamson,  9  Allen  (Mass.), 

Ala.  581  ;  Beach  2;.Eoyce,  I  Root  (Conn.),  85;  Poignand  i;.   Smith,  8  Pick.   (Mass.) 

244;  Judd  v.  Woodruff,  2  lb.  298;  Noyes  272;  Sheridan  v.  "Welch,  8  Allen  (Mass.), 

V.  Sturdivant,   18  Me.  104;    Sweetser  v.  166. 

Lowell,  33  Me.  446  ;  Conner  v.  Whitmore,  *  Poignand  v.  Smith,  supra. 
62  Me.  185  ;  Kruseu.  Scripps,  11  111.  98. 
546 


THE   NATURE   OF  HIS   ESTATE   OR   INTEREST.       [§§  704,  705. 

to  continue  under  his  heirs  after  his  death,  in  absence  of  evidence 
to  the  contrary  .1 

704.  A  mortgage  to  two  or  more  persons,  to  secure  debts 
due  to  them  severally,  creates  a  tenancy  in  common,  and  not  a 
joint  tenancy.^  The  interest  of  each  is  not  necessarily  a  moiety, 
but  in  proportion  to  their  respective  claims.^  Each  may  enforce 
his  claim  under  the  mortgage  in  a  form  adapted  to  the  case.^ 
Upon  the  death  of  one  the  survivor  cannot  maintain  an  action  on 
the  mortgage  to  enforce  the  payment  of  the  debt  secured  by  it  to 
the  deceased  mortgagee.^  To  a  bill  in  equity  affecting  interests 
under  such  a  mortgage,  it  is  not  sufficient  to  make  the  surviving 
mortgagee  alone  a  party ;  the  representatives  of  the  deceased  mort- 
gagee must  be  joined.^  But  if  a  mortgage  be  made  to  partners 
to  secure  a  joint  debt,  inasmuch  as  the  debt  itself  would  in  case 
of  the  decease  of  one  partner  vest  in  the  survivor  for  the  purpose 
of  collection,  it  is  held  that  the  estate  is  a  joint  tenancy,  so  that 
the  mortgage  security  may,  by  the  principle  of  survivorship,  ac- 
company the  debt.'^  After  foreclosure,  however,  the  new  absolute 
estate  then  acquired  is  considered  as  a  tenancy  in  common,  such  as 
would  ordinarily  be  created  by  a  conveyance  to  two  or  more  per- 
sons.^ 

705.  When  mortgagees  may  have  partition.  —  Before  fore- 
closure, mortgagees  holding  under  one  mortgage,  or  by  simulta- 
neous mortgages,  as  joint  tenants  or  tenants  in  common,  have  no 
such  interest  as  can  be  the  subject  of  partition.^  Until  foreclos- 
ure the  estate  is  to  most  purposes  in  the  mortgagor,  and  is  only 
a  lien  or  charge,  subject  to  which  it  may  be  conveyed,  attached, 
and  dealt  with  in  other  respects,  as  the  estate  of  the  mortgagor, 
who  may  wholly  defeat  the  estate  of  the  mortgagee  by  redemp- 
tion.    An  entry  to  foreclose   does  not  change  this  defeasible  and 

1  Currier  v.  Gale,  9  Allen  (Mass.),  522.        "^  Appleton  v.  Boyd,  7  Mass.  131.     In 

2  Brown  v.  Bates,  55  Me.  520.  Randall   v.  Phillips,  3   Mason,  378,  Mr. 
8  Donnels  v.  Edwards,  2  Pick.  (Mass.)     Justice  Story  held  that  such  a  mortgage 

617  ;  and  see  Beresford  v.  Ward,  1  Uis-  is  a  tenancy  in  common.     But  at  the  same 

ney  (Ohio),  169.  time  he  maintained,  that  on  the  death  of 

*  Burnett  r.  Pratt,  22  Pick.  (Mass.)  556.  one  partner  his  heirs  would  take  his  in- 

^  Burnett  r.  Pratt,   supra;    Kinsley  v.  terest  charged  with  an   implied  trust  for 

Abbott,  19  Me.  430.  the  survivor  as  security  for  the  debt. 

^  Smith  V.  Trenton  Delaware  Falls  Co.  *  Goodwin  i-.  Richardson,  II  Mass.  469, 

4  N.  J.  Eq.  (3  Green)  505.  »  Ewer  v.  Hobbs,  5  Met.  (Mass.)  1. 

547 


§  706.]  A  mortgagee's  rights  and  liabilities. 

redeemable  interest  of  the  mortgagee.     He  has  no  absolute  and 
certain  estate  till  foreclosure  is  complete. 

A  mortgagee  of  an  undivided  half  of  a  lot  of  land  upon  a  com- 
pleted foreclosure  may  have  partition  of  the  land,  against  the 
owner  of  the  other  half.^  But  until  foreclosure  is  complete  the 
mortgagee  does  not  become  a  tenant  in  common  with  the  owner 
of  the  other  undivided  part ;  he  is  merely  a  mortgagee  having  a 
lien  or  charge,  from  which  the  mortgagor  may  redeem  the  estate, 
and  subject  to  which  the  estate  may  be  conveyed,  attached,  and 
in  other  respects  dealt  with  as  the  estate  of  the  mortgagor.  He 
cannot  maintain  a  petition  for  partition,  neither  can  such  a  peti- 
tion be  maintained  against  him  by  the  owner  of  the  other  part,  or 
by  a  judgment  creditor  of  such  owner. ^ 

706.  When  the  mortgagee  is  bound  by  a  partition  of  the 
mortgaged  premises  between  the  mortgagors.  —  One  holding  a 
mortgage  of  the  interest  of  one  tenant  in  common  of  land  is  not 
bound  by  a  partition  made  by  the  owners,  unless  he  be  made  a 
party  to  the  suit,  or  voluntarily  ratifies  the  partition  made.^  The 
effect  of  a  partition  in  which  the  mortgagee  has  joined  as  to  his 
interest,  and  that  of  his  mortgagor,  is  to  substitute  for  an  undi- 
vided interest  in  the  whole  land,  the  whole  of  the  portion  set  off 
to  the  mortgagor  in  severalty.  No  part  of  his  mortgagor's  estate 
is  thereby  discharged  from  the  mortgage.^ 

A  tenant  in  common  who  has  mortgaged  his  undivided  share  in 
the  land  may,  so  long  as  he  remains  in  possession,  maintain  a  peti- 
tion for  partition  against  the  owner  of  the  other  shares  in  the 
land ;  ^  but  if  his  mortgagee  be  the  owner  of  the  other  shares  he 
cannot  without  his  consent  have  partition ;  for  it  is  an  adverse 
proceeding  affecting  either  the  title,  or  the  possession,  or  both, 
and  the  mortgagee  has  both  the  legal  title  and,  after  default  at 
least,  the  right  of  possession.^ 

If  one  tenant  in  common  take  an  assignment  of  a  mortgage 

1  Phelps  V.  Townsley,  10  Allen  (Mass.),  arate  freeholds  or  estates;  they  have  no 

554.  unity  of  interest,  but  unity  of  possession 

'■2  Norcross  v.  Norcross,  105  Mass.  265.  only.     This   unity  of    possession  is    de- 

3  Col  ton  V.   Smith,   11    Pick.   (Mass.)  stroyed  by  partition,  but  the  estate  remains 

311.  the  same."     See,  also,  Jackson  v.  Pierce, 

*  Torrey  v.  Cook,  116  Mass.  163  ;  Brad-  10  Johns.  (N.  Y.)  414. 

Icy   V.   Fuller,   23    Pick.    (Mass.)    1,    per  ^  Upham  v.  Bradley,  17  Me.  423. 

Wilde  J.  "  Tenants  in  common  have  sep-  ^  Fuller  r.  Bradley,  23  Pick.  (Mass.)  1, 8. 

548 


HIS   RIGHTS  AGAINST   THE  MORTGAGOR.       [§§  707,  708. 

upon  it,  his  co-tenant  cannot  maintain  a  petition  for  partition 
against  him,  but  his  only  remedy  is  by  redemption  of  the  whole 
mortgage,  or  contribution  of  his  share  of  the  incumbrance.-^ 

2.  His  Rights  against  the  Mortgagor. 

707.  A  mortgagee  is  entitled  to  the  whole  security.  —  He 
has  a  right  to  the  whole  mortgaged  premises  as  security  for  his 
debt,  and  cannot  be  compelled  to  take  a  portion  of  the  premises 
either  as  security  or  payment,  or  to  submit  to  the  uncertain  result 
of  a  sale  by  order  of  court.  A  creditor  of  the  mortgagor,  by 
levying  an  execution  on  the  equity  of  redemption,  and  having 
an  undivided  part  set  off  to  him,  acquires  no  right  to  have  the 
premises  sold  and  the  proceeds  divided  between  himself  and  the 
mortgagee,  though  the  premises  are  worth  more  than  enough 
to  pay  the  debts  to  both.^ 

Although  the  land  subject  to  a  mortgage  be  subsequently  laid 
out  in  lots  and  streets,  and  the  streets  opened  and  dedicated  to 
the  public  by  the  owner  of  the  land,  the  mortgagee's  lien  upon 
the  land  covered  by  the  streets  is  not  affected.  But  if  sales  of 
lots  bounding  upon  the  streets  be  made,  and  the  mortgagee  re- 
leases those  lots  from  the  operation  of  his  mortgage  b}'^  deeds 
referring  to  a  map  of  the  land  as  laid  out,  and  reciting  that  they 
are  the  lots  previously  conveyed  by  the  owner,  the  release  dis- 
charges not  only  the  lien  upon  the  lots,  but  upon  half  of  the 
street  in  front  of  them.^ 

708.  An  award  of  damages.  —  When  the  mortgaged  prop- 
erty has  been  turned  into  money,  or  a  claim  for  money,  in  any 
way,  as  for  instance  by  the  taking  of  the  property  for  public 
uses,  or  for  the  use  of  a  corporation  under  authority  of  law,  the 
rights  of  the  mortgagee  remain  unaltered,  and  he  is  entitled  to 
have  the  money  in  place  of  the  land  applied  to  the  payment  of  his 
claim.*  Thus  if  a  street  be  laid  out  through  land  subject  to  a 
mortgage,  although  the  damages  be  assessed  to  the  mortgagor, 
the  mortgagee  is  entitled  to  them,  as  an  equivalent  for  the  land 
taken  for  the  street.^ 

1  Blodgett  V.  Hiklreth,  8  Allen  (Mass.),  ^  Hacjue  t'.  Inhabitants  of  West  Hobo- 
186.  ken,  23  N.  J.  Eq.  354. 

2  Spencer  v.  "Waterman,  36  Conn.  342.         *  Brown  v.  Stewart,  1  Md.  Ch.  87. 

'">  Astor  V.  Hoyt,  5  Wend.  (N.  Y.)  603. 

549 


§§  709,  710.]     A  mortgagee's  rights  and  liabilities. 

Damages  awarded  to  a  mortgagor  for  land  taken  for  a  right  of 
way,  or  other  public  improvement,  become  a  substitute  for  the 
premises  taken,  and  the  mortgage  is  a  specific  lien  upon  the 
fund;i  as  also  do  damages  awarded  by  the  state,  for  an  injury 
done  to  the  property  by  the  abandonment  of  a  canal,  equitably 
belong  to  the  holder  of  the  mortgage.^  "  The  sum  awarded  arises 
from  or  grows  out  of  the  land,  by  reason  of  the  injury  which  has 
diminished  its  value.     In  equity  it  is  the  land  itself."  ^ 

The  mortgage  lien  attaches  to  the  surplus  arising  from  the  sale 
of  the  premises  under  a  prior  incumbrance.^ 

709.  A  mortgagee  is  an  essential  party  to  any  proceeding 
affecting  his  rights  to  the  mortgaged  premises  :  as  for  instance 
to  a  bill  to  set  aside  a  previous  sale  of  the  property  under  pro- 
ceedings in  insolvency  ;  ^  to  a  bill  to  compel  performance  of  a  con- 
tract by  the  owner  to  convey  the  estate  ;  ^  to  an  application  to  set 
apart  a  portion  of  the  mortgaged  premises  as  a  homestead ;  '^  or 
to  a  suit  to  set  aside  a  purchase  of  real  estate  by  an  administrator 
who  had  given  a  mortgage  while  in  possession,  and  claims  title 
under  his  purchase.^  But  a  mortgagee  who  has  not  entered  is 
not  a  necessary  party  to  a  proceeding  which  i*elates  altogether 
to  an  injury  done  to  the  possession  ;  as  for  instance  to  a  com- 
plaint for  flowage  under  the  mill  act ;  for  the  damages  in  such 
case  belong  exclusively  to  the  mortgagor  in  possession,  being  paid 
annually  ;  in  the  same  manner  that  any  other  annual  products  or 
damages  for  injury  to  them,  or  to  the  possession  of  the  land,  be- 
long to  the  mortgagor  alone.^ 

710.  A  mortgagee  is  to  the  extent  of  his  claim  a  purchaser 
of  the  land,  and  is  entitled  to  the  same  protection  from  all  secret 
equities  and  trusts  of  which  he  had  no  notice  as  any  other  bond 
fide  purchaser.^*^  He  is  not  affected  by  his  mortgagor's  fraud  in 
acquiring  his  title.^^ 

1  Astor  V.  Miller,  2  Paige  (N.  Y.),  68.  ^  Hoxie  v.  Carr,  1  Sumn.  173. 

2  Bank  of  Auburn  v.  Eoberts,  44  N.  Y.        ^  Lies  v.  De  Diablar,  12  Cal.  327. 
192;  S.  C.  45  Barb.  407.  »  Woodruff  v.  Cook,  2  Edw.   (N.  Y.) 

8  Per  Leonard,  C,  in  Bank  of  Auburn  259. 

V.  Roberts,  supra.  ®  Paine  v.  Woods,  108  Mass.  160. 

*  Bartlett  v.    Gale,   4   Paige   (N.   Y.),  w  Pierce  i;.  Faunce,  47  Me.  507  ;  Mar- 

503.  tin  V.  Jackson,  27  Pa.  St.  504. 

fi  Coiron  v.  Millaudon,  19  How.  113.  "  Stockton  v.  Craddick,  4  La.  Ann.  285. 
550 


HIS   RIGHTS   AGAINST   THE   MORTGAGOR.  [§  711. 

When  the  mortgage  was  executed  by  the  mortgagor  for  the 
purpose  of  defrauding  his  creditors,  although  the  mortgagee  had 
no  notice  of  such  fraudulent  intent  he  cannot  be  considered  a 
bond  fide  purchaser  beyond  the  amount  paid  by  him  at  the  time.^ 
But  a  mortgagee  who  has  knowledge  of  a  previous  conveyance 
of  the  mortgaged  property,  although  it  be  fraudulent  as  to  the 
mortgagor's  creditors,  cannot  call  in  question  its  validity.^ 

711.  That  a  mortgagee  may  pm-chase  the  mortgagor's  equity 
of  redemption,  though  doubted  in  some  early  cases,  is  as  a  gen- 
eral proposition  true.^  The  relation  between  them  is  not  so  far 
analogous  to  that  between  a  trustee  and  cestui  que  trust  as  to 
preclude  the  mortgagee's  purchasing.  The  real  reason  why  a 
person  standing  in  the  relation  of  trustee  cannot  purchase  from 
his  cestui  que  trust  is,  that  he  cannot  purchase  that  which  he  has 
to  sell.  He  has  a  duty  to  perform  as  a  trustee,  in  selling  for 
the  best  advantage  of  the  beneficiary  ;  and  this  is  inconsistent 
with  his  personal  interest  to  obtain  the  property  on  terms  advan- 
tageous to  himself.  But  there  is  no  trust  relation  between  the 
mortgagor  and  the  mortgagee.  The  mortgagee  is  under  no  obli- 
gation to  protect  the  equity  of  redemption.  In  exercising  a  sale 
under  the  power  which  usually  accompanies  a  mortgage,  this  trust 
relation  will  arise  so  as  to  prevent  his  purchasing  unless  he  is  au- 
thorized to  by  statute,  or  by  the  contract  itself,  to  become  a  pur- 

1  Tripp  V.  Vincent,  8  Paige  (N.  Y.),  naked  proposition  is  not  correctly  true; 
176;  Hall  v.  Arnold,  15  Barb.  (N.  Y.)  but  an  emanation  from  that,  which  pre- 
599.  vails  in  most  cases,  in  all  laws  and  coun- 

2  Fox  V.  Willis,  1  Mich.  321.  tries,   where   trusts   are   admitted,  led   to 

3  See  chapter  xxii. on  "Redemption."  great  discussion  in  M'Enzie's  case,  to 
Kniglit  V.  Majoribanks,  2  Mac.  &  G.  10;  prove  that  the  sale,  where  the  trustee  to 
Ten  Eyck  v.  Craig,  62  N.  Y.  406;  2  sell  is  the  purchaser,  is  j>soj!(re  null ;  that 
Hun,  452 ;  5  Thomp.  &  C.  65  ;  Kemsen  v.  there  is  no  sale,  no  contracting  party. 
Hay,  2  Edw.  (N.  Y.)  535  ;  Hicks  y.  Hicks,  That  is  not  the  real  sense  of  the  proposi- 
5  Gill  &  J.  (Md.)  75  ;  Ilinkley  v.  Wheel-  tion  ;  but  it  is  this, —which  is  very  plain 
Wright,  29  Md.  341  ;  Green  v.  Butler,  26  iu  point  of  ecjuity,  and  a  principle  of  clear 
Cal.  595  ;  Slielton  v.  Hampton,  6  Ircd.  reasoning  :  that  he  who  undertakes  to  act 
(N.  C.)  L.  216.  for  another  in  any  matter,  shall  not  in 

In  Whichcote  v.  Lawrence,  3  Ves.  740,  the  same  matter  act  for  himself.  There- 
Lord  Chancellor  Loughborough  states  the  fore  a  trustee  to  sell  shall  not  gaiu  any 
rule  with  force  and  accuracy  :  "  The  rule  advantage  by  being  himself  the  jjcrson  to 
is  laid  down  not  very  correctly  in  most  of  buy.  He  is  not  acting  with  that  want  of 
the  cases,  where  you  find  it.  It  is  stated  interest,  that  total  absence  of  temptation, 
as  a  proposition,  that  a  trustee  cannot  that  duty  imposed  upon  him,  that  he  shall 
buy  of  the  cestui  que  trust.     Certainly  that  gain  no  profit." 

551 


§  712.]  A  mortgagee's  rights  and  liabilities. 

chaser.  There  he  has  a  trust  to  fulfil  in  selling  for  the  mortgagor. 
But  until  this  trust  arises  he  may  deal  with  the  mortgagor  him- 
self in  respect  to  the  mortgaged  estate  ;  subject  only  to  the  qual- 
ification that  the  courts  look  upon  their  transactions. with  jeal- 
ousy, and  will  set  aside  a  purchase  made  by  the  mortgagee,  when 
by  the  influence  of  his  position  he  has  purchased  the  equity  of 
redemption  for  a  less  price  than  others  would  have  given. ^ 

The  general  rule  therefore  is,  that  the  mortgagee  may  acquire 
the  equity  of  redemption,  either  directly  from  the  owner,  or  at  a 
sale  by  his  assignee  in  bankruptcy,  or  by  his  creditor  upon  execu- 
tion.^  He  may  acquire  any  title  adverse  to  the  mortgagor,  what- 
ever it  may  be,  and  set  it  up  against  his  claim  to  redeem.^ 

712.  The  fact  that  the  mortgagee  is  in  possession  does  not 
change  the  rule.  By  taking  possession  he  does  not  become  a 
trustee,  except  in  a  limited  sense.  He  may,  perhaps,  be  called  a 
trustee  in  respect  to  his  liability  to  account  for  the  rents  and 
profits.*  "  No  trust  is  expressed  in  the  contract ;  it  is  only  raised 
by  implication  in  subordination  to  the  main  purpose  of  it ;  and 
after  that  is  full}'^  satisfied  its  primary  character  is  not  fiduciary."^ 
A  purchase  by  the  mortgagee  in  possession  will  be  carefully  scru- 
tinized when  fraud  is  charged ;  and  to  avoid  the  purchase  in  equity 
it  is  not  necessary  to  show  actual  fraud,  but  constructive  fraud  is 
sufiicient  for  that  purpose,  or  even  an  unconscientious  advantage 
taken  of  a  mortgagor  in  needy  circumstances,  which  ought  not  to 
be  retained.^  A  grossly  inadequate  price  paid  for  the  equity  of 
redemption  is  ground  for  such  relief.''^ 

An  agreement  made  between  the  mortgagor  and  mortgagee, 
after  the  making  of  the  mortgage,  that  the  mortgagee  may  pur- 
chase the  equity  of  redemption  at  an  appraisal,  in  the  absence  of 
any  unfairness  in  its  terms  has  been  held  valid  and  enforced.^ 

1  Webb  V.  Borke,  2  Sch.  &  Lef.  661,  3  Cow.  (N.  Y.)  151  ;  Duval  v.  P.  &  M. 
per  Lord  Redesdale;  Ford   v.  Olden,  L.    Bank,  10  Ala.  636. 

R.  3  Eq.  461.  s  Sir  Thomas  Plumer,  in  Cholmondeley 

2  Blythe  v.  Richards,  10  S.  &  R.   (Pa.)     v.  Lord  Clinton,  2  Jac.  &  Walk.  183. 
261.  6  Russell  V.   Southard,    12   How.   139; 

8  Walthall  u.  Rives,  34  Ala.  91;  Har-  Hyndman  v.  Hyndman,   19   Vt.   9;  Per- 

rison  v.  Roberts,  6  Fla.  711.  kins  v.  Drye,  3  Dana  (Ky.),  170;  Chap- 

-  *  Per  Chief  Justice  Shaw,  in  King  v.  man  v.  Mull,  7  Ired.  (N.  C.)  Eq.  292. 

Ins.  Co.  7  Cush.  (Mass.)  7 ;  Ten  Eyck  v.  ^  McKinstry  v.  Conly,  12  Ala.  678. 

Craig,  62  N.Y.  406,422;  Clark  r.  Bush,  «  Austin   v.  Bradley,   2   Day  (Conn.), 
552 


HIS  RIGHTS   AGAINST   THE   MORTGAGOR.      [§§  713,  714. 

The  mortgagee  in  possession  may  even  purchase  the  equity  of 
redemption  at  a  sale  upon  an  execution  in  his  own  favor  issued 
upon  a  judgment  for  a  debt  other  than  the  mortgage  debt ;  and 
may  hold  the  title  adversely  to  the  mortgagor  if  ho  does  not  re- 
deem, as  from  a  sale  upon  execution.^ 

713.  There  is  a  limitation  of  this  rule  whenever  the  mort- 
gagee has  either  expressly  assumed  any  duty  to  protect  the  mort- 
gaged estate  in  any  particular,  or  such  a  duty  impliedly  arises 
from  the  relation  of  the  parties.  Thus,  for  instance,  it  is  generally 
the  duty  of  the  mortgagee  in  possession  and  receiving  an  in- 
come from  the  estate  to  pay  the  taxes  upon  it ;  and  therefore  he 
is  not  allowed  to  suffer  the  estate  to  be  sold  for  taxes,  and  upon 
purchasing  it  in,  to  set  up  this  title  as  a  bar  to  the  mortgagor's 
redeeming.  He  is  on  the  contrar}^  regarded  as  holding  this  title  in 
trust  for  the  mortgagor's  benefit.  He  may,  however,  under  some 
circumstances,  acquire  a  tax  title,  and  hold  it  adversely  to  the 
owner  of  the  equity  of  redemption  ;  ^  but  this  is  only  when  he  is 
under  no  obligation  himself  to  pay  the  taxes  on  which  the  sale 
was  made. 

714.  When  the  payment  of  the  taxes  is  duty  on  his  part, 
he  is  like  a  trustee,  and  cannot  affect  the  rights  of  the  mortgagor 
by  purchasing  the  property  at  a  sale  for  such  taxes.^  Such  is  his 
position  when  he  has  taken  possession  of  the  premises  for  the  pur- 
pose of  foreclosing  his  mortgage.*  He  may  pay  the  taxes,  and 
add  the  amount  to  the  debt  secured  by  the  mortgage,  but  he  can- 
not acquire  an  adverse  title  by  a  purchase  at  a  sale  by  the  tax  col- 
lector.^ 

466.    In  this  case  the  mortgagor,  after  a  court  held'that  the  agreement  should  be 

breach  of  the  condition,  agreed  in  writing  enforced. 

to  make  an  absolute  conveyance  of  the  ^  Trimra  v.  Marsh,  54  N.  Y.  599 ;  Wood- 
premises  by  warranty  deed,  on  demand,  at  lee  v.  Burch,  43  Mo.  231  ;  Walthall  v. 
an  appraisal,  and  that  if  the  appraised  Rives,  34  Ala.  92 ;  Harrison  v.  Roberts,  6 
value  should  be  more  than  the  sum  due  Fla.  711. 

on   the  mortgage  the  balance  should  be  ^  Williams  v.  Townsend,  31  N.  Y.  411. 

paid  to  the  mortgagor  within   one  year  ^  Ten  Eyck  v.  Craig,  62  N.  Y.  406,  422, 

from  the  date  of  the  agreement      The  ap-  per  Andrews,  J. ;  Chickering  i-.  Failes,  26 

praisal  was  made,  and  the  balance  due  the  111.  507  ;  Moore  r.  Titman,  44  111.  367. 

mortgagor  was  tendered  within  the  time  *  Brown  i'.  Simons,  44  N.  H.  475. 

specified  to  his  executors,  he  having  died,  ^  Brown  v.  Simons,  supra  ;  Brevoort  v. 

and  a  demand  made  of  a  conveyance.  The  Randolph,  7  How.  (N.  Y.)  Pr.  398. 

653 


§  715.]  A  mortgagee's  rights  and  liabilities. 

A  junior  mortgagee  cannot  before  foreclosure  of  his  mortgage 
acquire  a  title  to  the  premises  paramount  to  a  prior  mortgage  by 
taking  a  tax  deed  of  the  same.  If  he  acquire  such  title  after  fore- 
closure of  his  mortgage  and  purchase  of  the  premises,  he  could 
not  set  it  up  against  the  first  mortgagee  if  the  tax  was  levied 
after  he  took  possession,  because  he  would  then  stand  in  the  place 
of  a  purchaser,  who  is  bound  to  pay  the  taxes.^  Whether  he 
could  gain  any  rights  superior  to  those  of  the  first  mortgagee  by 
purchasing  a  tax  title,  outstanding  at  the  time  of  the  foreclosure 
of  his  mortgage,  or  issued  upon  a  sale  for  taxes  assessed  before 
that  time,  and  which  he  was  under  no  obligation  to  pay,  has  not, 
perhaps,  been  decided ;  but  it  would  seem  that  he  should  not  be 
allowed  to  set  up  such  title  so  as  to  wholly  defeat  the  rights  of 
the  prior  mortgagee.  Upon  the  ground  that  taxes  are  charged  as 
much  upon  the  mortgage  interest  as  upon  the  equity  of  redemp- 
tion, it  has  been  declared  that  a  subsequent  mortgagee  cannot,  by 
purchasing  the  tax  title,  use  it  adversely  to  the  first  mortgage. 
Such  title  in  his  hands  enures  to  the  protection  ratlier  than  the 
destruction  of  the  title  of  the  prior  mortgage.^ 

If  a  mortgagee  of  a  lease  obtain  a  renewal  of  it,  the  mortgagor 
is  entitled  to  the  benefit  of  it,  he  paying  the  mortgagee  for  his 
charges.  "  The  mortgagee  but  grafts  upon  his  stock,  and  it  shall 
be  for  the  mortgagor's  benefit."  ^  The  rule  is  the  same  in  case  the 
lease  expired  before  the  renewal  of  it.  So  if  a  moi-tgagee,  by  an 
agreement  with  the  mortgagor,  purchase  an  outstanding  prior  in- 
cumbrance, the  mortgagor  is  entitled  to  redeem  from  such  out- 
standing title  on  payment  of  the  sum  paid  by  the  mortgagee  for 
it. 

715.  A  mortgagee  cannot  be  divested  of  possession  until 
payment.  —  Even  where  a  mortgagor  cannot  be  divested  of  his 
possession  without  a  foreclosure  and  sale,  if  he  has  with  the  assent 
of  the  mortgagor  obtained  possession,  he  may  retain  it  until  pay- 
ment of  the  mortgage  debt,  and  the  mortgagor  cannot,  by  an 
action  of  ejectment  or  otherwise,  recover  possession  until  the  debt 
is  paid.^     Chief  Justice  Comstock,  in  the  Court  of  Appeals  of  New 

1  Smith  V.  Lewis,  20  Wis.  350.  Brewer,  2  P.  Wms.  510 ;  Nesbett  v.  Tre- 

2  Horton  v.  Ingersoll,  13  Mich.  409,  dennick,  Ball  &  B.  29 ;   Moore  v.  Titman, 
8  Lord  Chancellor  Nottingham  in  Rush-    44  111.  367. 

worth's  case,   Freem.    12;  Rakestraw   v.        *  Hubbell  v.  Moulson,  53  N.  Y.  225; 

554 


HIS  RIGHTS   AGAINST   THE  MORTGAGOR.  [§  715. 

Yoi'k,^  speaking  of  the  use  of  this  action  for  the  recovery  of  pos- 
session of  the  mortgaged  premises,  said  :  "  When  the  legislature 
by  express  enactment  denied  this  remedy  to  mortgagees,  they  un- 
doubtedly supposed  they  had  swept  away  the  only  remaining  ves- 
tige of  the  ancient  rule  of  the  common  law,  which  regarded  a 
mortgage  as  a  conveyance  of  the  freehold  ;  yet  I  see  nothing  in- 
consistent or  anomalous  in  allowing  the  possession,  once  acquired 
for  the  purpose  of  satisfying  the  mortgage  debt,  to  be  retained 
until  that  purpose  is  accomplished.  When  that  purpose  is  at- 
tained, the  possessory  right  instantly  ceases,  and  the  title  is,  as 
before,  in  the  mortgagor,  without  a  reconveyance.  The  notion  that 
a  mortgagee's  possession,  whether  before  or  after  default,  enlarges 
his  estate,  or  in  any  respect  changes  the  simple  relation  of  debtor 
and  creditor,  between  him  and  his  mortgagee,  rests  upon  no  foun- 
dation. We  may  call  it  a  just  and  lawful  possession,  like  the 
possession  of  any  other  pledge  ;  but  when  its  object  is  accom- 
plished it  is  neither  just  nor  lawful  for  an  instant  longer." 

A  mortgagee  who  has  acquired  possession  before  his  mortgage 
became  due,  by  virtue  of  some  other  title,  is  to  be  deemed  at  the 
maturity  of  his  mortgage  as  holding  as  a  mortgagee  in  possession 
upon  a  forfeiture  ;  and  therefore,  although  he  has  lost  the  title 
under  which  he  originally  entered,  he  may  defend  his  possession 
under  his  mortgage  .^ 

The  mortgagee's  right  to  enter  in  any  lawful  mode  and  hold 
possession  of  the  mortgaged  premises  may  be  presumed  from  the 
mortgage  itself,  unless  there  be  some  agreement  modifying  the 
presumption.  Although  he  cannot  recover  possession  by  eject- 
ment, being  in  possession  he  may  hold  possession.  Even  when 
one  is  a  trespasser  in  the  first  instance,  and  while  holding  in  this 
way  takes  an  assignment  of  a  mortgage,  it  would  seem  after  for- 
feiture, at  least,  that  the  mortgagor's  consent  to  his  holding  pos- 
session would  be  inferred  from  the  mortgage  itself.^  At  any  rate 
one  who  has  entered  in  this  way  may,  after  forfeiture,  defend  his 

Pell  V.  Ulmar,  18  N.   Y.  139;  Watson  v.  i  See  Kortright  v.  Cady,  21  N.  Y.  343, 

Spencc,  20  Wend.   (N.  Y.)   260;  Fox  v.  365. 

Lipe,  24  lb.  164;  Phyfe  v.  Riley,  15  lb.  -  Winslow  i;.  McCall,  32  Barb.  (N.  Y.) 

248  ;  Van  Duyne  v.  Thayre,  14  lb.  233  ;  241  ;  Bolton  v.  Brewster,  lb.  389. 

Fogal  y.  Pirro,  17  Abb.  (N.   Y.)  Pr.   113;  ^  Madison   Av.    Church   v.    Oliver   St. 

10  Bosw.  100;  Chase  v.  Peck,  21    N.  Y.  Church,  41    N.   Y.   Superior  Ct.  369,  per 

586;  Roberts  i-.  Sutherlin,  4  Oregon,  219.  Sedgwick,  J. 

555 


§§  716,  717.]     A  mortgagee's  rights  and  liabilities. 

possession  as  assignee  of  the  mortgage  ;  ^  but  the  mortgage  before 
default  would  not,  it  would  seem,  enable  him  to  defend  his  wrong- 
ful possession  of  the  premises.^ 

It  has  been  held,  however,  that  possession  obtained  by  a  mort- 
gagee, through  collusion  with  the  mortgagor's  tenant,  is  not 
lawful.^ 

716.  If  the  mortgagee  lawfully  obtains  possession  after  for- 
feiture, the  mortgagor  cannot  recover  possession  without  satisfying 
the  mortgage.  He  cannot  maintain  ejectment  for  the  premises  ; 
his  remedy  is  by  a  bill  to  redeem.* 

By  the  purchase  of  an  overdue  mortgage  one  already  in  law- 
ful possession  of  the  premises,  as  for  instance  when  he  has  entered, 
with  the  owner's  consent,  under  a  contract  to  purchase  them, 
may  by  virtue  of  such  title  hold  them  until  the  debt  is  paid.^  But 
if  he  has  not  acquired  the  mortgage  title  at  the  time  of  the  bring- 
ing of  suit  against  him  to  recover  possession  of  the  mortgaged 
premises,  his  subsequent  purchase  of  the  mortgage  will  not  avail 
him  as  a  defence.^ 

The  beneficiary  under  a  trust  deed  after  condition  broken  en- 
tered upon  the  premises,  and  without  any  sale  under  the  trust 
deed  conveyed  the  estate.  The  maker  of  the  deed  of  trust 
brought  an  action  of  ejectment  against  the  purchaser,  and  it  was 
held  that  although  the  conveyance  did  not  pass  to  him  the  legal 
title,  it  operated  as  an  assignment  of  the  equity  of  the  beneficiary  ; 
and  that  being  in  possession,  he  could  defend  successfully  against 
the  grantor,  unless  he  paid  the  debt  secured.'^  He  is  not  a  mere 
stranger  setting  up  a  title  in  another.^ 

717.  In  Michigan,  however,  the  mortgagor  may  recover  pos- 
session from  the  mortgagee  at  any  time  before  his  rights  have  in 

1  lb.  6  Wis.  244  ;  Stark  v.  Brown,  12  Wis.  .572  ; 

2  Madison  Av.  Baptist  Church  v.  Bap-    Pace  v.  Chadderdon,  4  Minn.  499. 

tist  Church  in  Oliver  St.  19  Abb.  (N.  Y.)  ^  Madison  Av.  Baptist  Ch.  v.  Baptist 

Pr.  10.5.  Church,  &c.  2  Robert  (N.  Y.),  642  ;  3  lb. 

8  Russell  V.  Ely,  2   Beach,  575  ;  Sahler  570 ;  19  Abb.  Pr.  105 ;  1  Abb.  Pr.  N.  S. 

V.  Signer,  44  Barb.  (N.  Y.)  606.  214. 

*  Den  V.  Wright,  7  N.  J.  L.  (2  Halst.)  e  Hall  v.  Bell,  6  Met.  (Mass.)  431. 

175  ;  Hennesy  v.  Farrell,  20  Wis.  42;  Gil-  ^  Johnson  v.  Houston,  47  Mo.  227. 

lett  V.  Eaton,  6  Wis.  30  ;  Tallman  v.  Ely,  ^  Woods  v.  Hilderbrand,  46  Mo.  284. 
556 


HIS   RIGHTS   AGAINST   THE   MORTGAGOR.      [§§  718,  719. 

some  manner  been  foreclosed.^  If  he  goes  into  possession  with- 
out permission  of  the  mortgagor  he  may  be  removed  through  a 
suit  of  ejectment.^  Having  a  right  of  possession  by  statute,  it  is 
held  that  he  may  enforce  the  right.  His  right  to  possession  must 
exclude  the  mortgagee's  right  to  hold  it.  "  It  would  be  absurd," 
said  Mr.  Justice  Campbell,  "  to  hold  there  could  be  a  right  of  pos- 
session which  could  not  lawfully  be  enforced."  ^  When  the  mort- 
gagee has  entered  by  permission,  it  would  seem  that  his  possession 
could  not  be  disturbed  by  the  mortgagor  without  redemption  ; 
but  in  such  case  his  authority  would  be  regarded  as  resting  upon 
the  license,  and  not  upon  the  mortgage.^ 

718.  Writ  of  entry.  —  If  the  possession  of  a  mortgagee  after 
entry  is  interfered  with  by  the  mortgagor  or  those  claiming  under 
him,  the  mortgagee  may  maintain  his  title  and  his  right  to  pos- 
session by  a  writ  of  entry,  declaring  on  his  own  seisin,  and  may 
have  an  absolute  judgment  for  possession  as  at  common  law,  with 
damages  for  the  rents  and  profits  of  which  he  was  wrongfully  de- 
prived.^ Such  judgment  does  not  interfere  with  the  mortgagor's 
right  to  redeem,  and  upon  redemption  to  claim  the  rents  and  prof- 
its so  recovered.  Moreover,  when  the  mortgagee  has  not  been 
disturbed  in  his  possession,  but  he  has  either  before  or  after  con- 
dition broken  the  right  of  possession,  he  may  have  judgment  at 
common  law  against  the  mortgagor  in  a  writ  of  entry,  unless  the 
defendant  claims  the  conditional  judgment  where  foreclosure  may 
be  had  by  this  process.^ 

719.  Ejectment.  —  After  the  maturity  of  the  mortgage,  a 
mortgagee,  without  foreclosure  or  sale,  may  maintain  ejectment 
against  the  mortgagor,  without  giving  him  previous  notice."  A 
second  mortgagee  may  maintain  the  action,  although  there  be  an 
outstanding  first  mortgage  still  unsatisfied.    The  first  mortgagee 

1  Humphrey  v.  Hurd,  29  Mich.  44 ;  Shaw,  C.  J.  "  The  action  is  therefore 
Caruthers  v.  Humphrey,  1 2  Mich.  270.  against  wrong-doers,  and  not  against  mort- 

2  Newton  v.  McKay,  30  Mich.  380.  gagors." 

8  Newton  v.  McKay,  supra.  *<  Howard  v.  Houghton,   64    Me.   445 ; 

*  Newton  v.  McKay,  supra,  per  Camp-  Treat  v.  Pierce,  53  Me.  77. 

bell,  J.  ■^  Allen  v.  Ranson,  44  Mo.  263  ;  Carroll 

8  Stewart  v.  Davis,  63    Me.   539;    Mi-  v.  Ballance,  26  111.  9. 
ner  v.  Stevens,   I   Cush.  (Mass.)  468,  per 

657 


§§  720,  721.]     A  mortgagee's  rights  and  liabilities. 

is  regarded  as  holding  tlie  legal  title  only  for  tlie  purpose  of  en- 
forcing payment  of  the  debt.^ 

If  the  mortgagee  bring  ejectment  for  possession  of  the  property, 
the  defendant  may  prove  by  parol  that  the  mortgage  debt  has 
been  paid. 

After  the  mortgage  debt  has  been  satisfied  the  mortgagee  can- 
not maintain  an  action  at  law  to  recover  possession,  although  it 
has  not  been  formally  satisfied. 

In  such  suit,  however,  the  mortgagor  cannot  introduce  evidence 
to  show  that  the  mortgage  is  one  oE  indemnity,  and  that  the 
mortgagee  has  suffered  no  damage.^  Even  the  admissions  of  the 
mortgagee  that  the  mortgage  is  not  a  lien  are  not  admissible, 
except  in  favor  of  a  subsequent  purchaser  or  incumbrancer,  who 
has  been  misled  by  them.^  The  mortgage  alone,  duly  executed, 
acknowledged,  and  recorded,  is  admissible  in  evidence  of  the  mort- 
gagee's title  to  the  land  mortgaged,  without  first  producing  the 
notes  which  it  was  given  to  secure.'* 

720.  Forcible  entry  and  detainer.  —  This  process  is  not  ap- 
plicable to  the  case  of  a  mortgagee  who  has  attempted  to  take 
possession  under  a  mortgage  for  a  breach  of  condition,  and  whose 
attempt  has  been  repelled  by  force.  The  remedy  is  by  a  writ  of 
entry.  The  defendant  has  the  right  to  have  the  court  inquire  and 
determine  how  much  is  due  upon  the  mortgage,  and  also  has  a 
right  to  have  a  conditional  judgment  entered,  which,  under  the 
practice  in  Maine  and  Massachusetts,  delays  for  two  months  the 
issue  of  the  execution,  and  gives  a  chance  for  redemption.^ 

721.  A  mortgagee  who  has  entered  for  condition  broken 
may  maintain  trespass  for  mense  profits  against  one  who  is  in 
possession  of  the  premises  under  the  mortgagor,  and  refuses  to 
yield  possession,  although  the  entry  may  not  have  been  sufiicient 
for  the  purpose  of  foreclosure.^      For  an  injui-y  to  the  freehold 

1  Savage  v.  Dooley,  28  Conn.  411 ;  Eose-  ^  "Walker  v.  Thayer,  113  Mass.  36  ;  Ger- 
velt  V.  Stackhouse,  1  Cow.  (N.  Y.)  122  ;  rish  r.  Mason,  4  Gray  (Mass.),  432  ;  Hast- 
Gray  v.  Jenks,  3  Mason,  520.  ings  v.  Pratt,  8  Cush.  (Mass.)  121  ;  Lar- 

2  Jackson  v.  Jackson,  5  Cow.  (N.  Y.)  ned  v.  Clarke,  lb.  29. 

173.  6  Northampton  Paper  Mills  v.  Ames,  8 

^  Jackson  v.  Jackson,  supra.  Met.  (Mass.)  1  ;  and  see  Miner  v.  Stevens, 

*  Smith  U.Johns,  3  Gray  (Mass.),  517.       1  Cush.  (Mass.)  482. 

658 


HIS   LIABILITY   TO   THIRD   PERSONS.  [§  722. 

rather  than  to  the  possession,  a  mortgagee  not  in  actual  posses- 
sion may,  after  condition  broken,  maintain  trespass  against  the 
mortgagor  ;  as  for  instance  for  cutting  and  carrying  to  market 
timber  trees  standing  on  the  mortgaged  land.  After  condition 
broken  the  mortgagee's  right  to  possession  accrues,  and  carries 
with  it  the  right  to  sue  in  trespass  for  such  an  injury.  The  pos- 
session of  the  mortgagor  is  not  adverse,  and  an  injury  to  the  free- 
hold is  beyond  a  matter  of  possession  of  the  mortgagor,  and  who- 
ever be  the  wrong-doer,  he  is  amenable  to  the  mortgagee  for  a 
violation  of  his  rights. ^ 

3.  His  Liability  to   Third  Persons. 

722.  The  effect  of  releasing  a  part  of  the  mortgaged  prop- 
erty.—  As  between  the  original  parties  the  release  of  a  part  of 
the  premises  does  not  affect  the  mortgagee's  lien  upon  the  resi- 
due. This  is  bound  for  the  whole  debt.^  But  as  against  others 
who  have  liens  upon  portions  of  the  mortgaged  premises,  a  mort- 
gagee with  notice  of  such  liens  has  no  right  to  release  any 
portion  of  the  mortgaged  premises  to  the  injury  of  the  owners 
of  such  liens.^  It  is  only  after  receiving  notice  of  such  liens 
that  he  becomes  responsible  for  his  acts  in  releasing  portions  of 
the  land.'^ 

The  mortgagee,  by  releasing  one  of  two  parcels  of  land  which 
are  charged  with  the  burden  of  the  incumbrance,  may,  to  the  ex- 
tent of  the  value  of  the  lot  so  released,  diminish  his  security ; 
because  in  such  case  the  purchaser  of  the  other  parcel  cannot  com- 
pel the  purchaser  of  the  parcel  so  released  to  contribute,  and  the 
mortgagee  who  has  interfered  and  discharged  a  portion  of  his 
lien  must  in  effect  make  contribution,  by  abating  such  a  pro- 
portion of  the  sum  due  on  the  mortgage  as  the  value  of  the  par- 
cel released  bore  at  the  time  of  the  execution  of  the  mortgage 
to  the  value  of  both-  parcels.^ 

A  mortgagee  who  knows  that  portions  of  the  mortgaged  prem- 
ises have  been  subsequently  conveyed  or  incumbered  is  not  al- 
lowed in  equity  to  release  those  parts  of  the  land  on  which  he  has 

1  Page  V.  Robinson,  10  Cush.   (Mass.)  587  ;  Blair  u.  "Ward,  10  N.J.  Eq.  (2  Stock.) 
99,  and  cases  cited  from  Maine  and  New  119;  Wolff.  Smith,  36  Iowa,  454. 
Hampshire.  *  Vanordcn  i;.  Johnson,  14  N.  J.  Eq. 

2  Coutantv.  Servoss,3Barb.  (N.  Y.)  128.  376. 

«  Paxton  V.  Harrier,  11   Pa.  St.  312;        ^  Parkman  v.  Welch,  19  Pick.  (Mass.) 
McLean  v.  Lafajette  Bank,  3   McLean,    231. 

559 


§  723.]  A  mortgagee's  rights  and  liabilities. 

the  only  lien,  and  to  enforce  his  entire  claim  upon  those  por- 
tions in  which  others  have  become  interested.  Justice  may  re- 
quire that  the  lien  of  the  mortgage  be  extinguished  as  to  those 
parts  in  which  subsequent  parties  have  become  interested.^  But 
if  they  can  be  pi'otected  without  that,  he  may  still  enforce  his 
mortgage  against  the  remaining  portions  of  the  land,  so  far  as  he 
can  be  allowed  to  do  so  consistently  with  their  protection.  If  the 
mortgagor  after  actual  notice  of  an  absolute  sale  of  a  portion  of 
the  premises  by  the  mortgagor  releases  other  portions  of  suffi- 
cient value  to  secure  his  whole  claim,- the  mortgage  is  held  dis- 
charged upon  that  part  owned  by  such  subsequent  purchaser.  If 
the  person  subsequently  interested  be  a  mortgagee,  the  first  mort- 
gage would  be  postponed  to  the  second  in  the  application  of  the 
proceeds  of  a  foreclosure  sale. 

Where  a  mortgagee  releases  several  parcels  of  land  covered 
by  the  mortgage,  upon  payment  of  amounts  proportionate  to  the 
value  which  they  bear  to  the  mortgaged  debt,  and  all  the  re- 
maining lots,  except  one  in  possession  of  a  purchaser  from  the 
mortgagor,  are  subsequently  sold  under  foreclosure  of  the  mort- 
gage for  amounts  not  proportionate  to  the  actual  value  which  they 
bear  to  the  mortgage  debt,  but  without  any  fault  on  the  part  of 
the  mortgagee,  the  remaining  lot  is  subject  to  the  payment  of  the 
balance  of  the  mortgage  debt.^ 


"tJ^'iS" 


723.  What  notice  affects  the  mortgagee.  —  The  mortgagee 
who  has  actual  or  constructive  notice  of  the  equity  of  such  pur- 
chaser must  regard  it ;  and  therefore  if  he  releases  a  part  of 
the  mortgaged  estate,  he  must  abate  a  proportionate  part  of  the 
mortgage  debt  as  against  such  purchaser.  But  the  mere  record 
of  a  subsequent  conveyance  by  the  mortgagor  of  a  part  of  the 
premises  is  not  constructive  notice  of  it  to  him.^  It  would  not  be 
reasonable  to  subject  the  mortgagee  to  the  constant  necessity  of 
investigating  transactions  between  the  mortgagor  and  third  per- 
sons subsequent  to  the  mortgage. 

1  Parkmav  v.  Welch,  19  Pick.  (Mass.)  Wis.  307  ;  Straiglit  v.  Harris,  14  Wis. 
231  ;  Deuster  v.  McCamus,  14  Wis.  307  ;  509  ;  Patty  v.  Pease,  8  Paige  (N.  Y.),  277  ; 
Stevens  v.  Cooper,  1  Johns.  (N.  Y.)  Ch.  Giiion  v.  Knapp,  6  lb.  35;  Brown  v. 
425;  Guiou  ?;.  Knapp,  6  Paige  (N.Y.),  35.  Simons,  44   N.  H.  475;  Wheelwright  v. 

2  Barney  v.  Myers,  28  Iowa,  472.  Depeyster,  4  Edw.  (N.  Y.)  Ch.  232  ;  Tay- 
=•  George  v.  Wood,  9  Allen  (Mass.),  80,     lor  v.  Maris,  5  Rawle  (Pa.),  51. 

and  cases  cited;  Deuster  v.  McCamus,  14 

660 


HIS    LIABILITY   TO   THIRD   PERSONS.  [§§  724-726. 

A  subsequent  purchaser  takes  his  title  with  full  knowledge  of 
the  mortgage,  and  if  he  wishes  to  protect  himself  he  should  notify 
the  mortgagee  of  his  purchase.  The  record  is  constructive  notice 
only  to  subsequent  purchasers,  or  those  claiming  under  the  same 
grantor.i 

724.  Not  allowed  to  release  security  to  the  prejudice  of  a 
surety.  —  In  like  manner,  a  mortgagee  holding  a  mortgage  to 
secure  a  debt  for  which  another  is  liable  as  surety  has  no  right  to 
release  the  mortgage  and  still  hold  the  surety  liable  ;  for  the 
surety  is  entitled  to  the  benefit  of  the  security  given  by  the  prin- 
cipal debtor,  and  the  creditor  is  not  allowed,  as  against  him,  to  do 
any  act  impairing  or  releasing  such  security  .^ 

725.  Nor  to  the  prejudice  of  a  junior  mortgagee.  —  The 
holder  of  a  junior  mortgage  upon  one  of  two  lots  embraced  in 
a  prior  mortgage  may  compel  the  prior  mortgagee  to  resort  in 
the  first  place  to  the  other  lot,  upon  which  there  is  no  other  in- 
cumbrance ;  ^  but  if  the  other  lot  be  incumbered  by  a  mortgage 
to  another  person,  the  prior  mortgagee  will  be  required  to  satisfy 
his  claim  out  of  the  proceeds  of  both  lots,  in  proportion  to  the 
amount  which  each  may  produce.* 

But  although  generally  a  second  mortgagee  has  an  equitable 
right  to  have  other  security  in  the  hands  of  the  first  mortgagee 
applied  to  the  payment  of  the  mortgage  before  resorting  to  the 
land,  when  this  course  is  likely  to  occasion  much  delay  to  the 
prior  mortgagee  in  obtaining  satisfaction,  the  court  will  decree  the 
satisfaction  of  his  claim  from  the  mortgaged  propertj^  but  will  at 
the  same  time  provide  for  the  subrogation  of  the  second  mort- 
gagee to  the  other  security.^ 

726.  The  principal  creditor  entitled  to  the  benefit  of  a 
mortgage  to  a  surety.  —  A  mortgage  to  a  surety  to  secure  him 
is,  in  effect,  a  security  to  the  principal  creditor,  and  he  is  entitled 
to  the  benefit  of  it.^     If  it  be  a  mortgage  of  indemnity  the  surety 

1  Chcever  v.  Fair,  5  Cal.  337.  5  King  v.  McVickar,  3   Sandf.  (N.  Y.) 

2  Hayes  v.  Ward,  4  Johns.  (N.  Y.)  Ch.     Ch.  192. 

123.  6  Moore  v.  Moberly,  7  B.  Mon.  (Ky.) 

8  Henshaw  v.  Wells,  9  Humph.  (Tenn.)  299  ;  Rice  v.  Dewey,  13  Gray  (Mass.),  47 ; 

568.  Dickv.  Truly,  1  Sm.  &  M.  (Miss.)   Ch. 

*  Green  v.  Ramage,  18  Ohio,  428.  557. 

VOL.  I.                                 36  561 


§  727.]  A  mortgagee's  rights  and  liabilities. 

cannot  enforce  it  until  he  has  been  injured,  or  has  paid  the 
debt  for  which  he  was  surety  ;  ^  and  in  hke  manner  the  security 
does  not  in  the  first  instance  attach  to  the  debt,  as  an  incident  to 
it,  but  whatever  equity  may  arise  in  favor  of  the  creditor  with 
regard  to  the  security  arises  afterward,  and  comes  into  existence 
only  when  the  surety's  right  to  call  upon  the  security  becomes 
fixed.2 

But  although  a  mortgage  to  indemnify  a  surety  attaches  to  the 
debt  for  the  benefit  of  the  creditor,  this  is  a  secondary  use  of  the 
security  which  is  to  be  used  primarily  for  the  benefit  of  the  mort- 
gagee ;  therefore,  if  it  be  taken  to  indemnify  one  who  is  surety  on 
several  notes,  and  is  discharged  upon  some  but  continues  liable 
upon  others,  he  has  the  right  to  use  the  security  for  the  payment 
in  the  first  place  of  those  notes  upon  which  he  is  liable  ;  while  the 
other  notes  have  the  incidental  benefit  of  the  remainder  of  the  se- 
curity.^ For  instance,  suppose  the  original  security  was  taken  to 
indemnify  a  surety  against  several  notes,  part  of  which  were  at- 
tested by  a  witness  and  part  were  not  so  attested,  and  that  after 
the  lapse  of  six  years  the  surety  was  discharged  upon  the  unat- 
tested notes  b}^  the  bar  of  the  statute  of  limitations,  but  not  dis- 
charged upon  the  others ;  he  is  entitled  to  pay  out  of  the  security 
the  notes  upon  which  he  is  still  liable  ;  not  only  because  he  has  a 
superior  equity,  but  because  he  stands  upon  the  ground  of  an- 
other rule  of  law,  that  of  two  or  more  having  equal  claims  in 
equity,  he  who  has  a  legal  title  is  preferred."^ 

A  mortgagee  having  a  specific  demand  secured  by  a  mortgage 
upon  his  debtor's  property,  and'  other  claims  not  secured  upon  a 
conveyance  by  the  debtor  of  his  equity  of  redemption,  and  other 
property  in  trust  to  pay  all  his  debts,  is  entitled  to  secure  the 
whole  amount  of  his  mortgage  out  of  the  land,  and  to  come  in 
pro  rata  with  other  creditors  as  to  his  other  claims.^ 

727.  If  a  mortgagee  release  the  mortgagor  from  personal 
liability,  he  thereby  diminishes  the  security  of  a  subsequent  pur- 
chaser of  part  of  the  premises,  and  therefore  the  lien  of  the  mort- 

1  Hall  V.  Cushman,  16  N.  H.  462.  19.     See  Miller   v.  Wack,    I    N.  J.   Eq. 

2  Jones  V.  Qninnipiack  Bank,  29  Conn.     (Sax.)  204. 

25.  See,  however,  McLean  v.  Lafayette  *  Eastman  v.  Foster,  supra,  per  Shaw, 
Bank,  3  McLean,  587.  C.  J. 

8  Eastman   v.   Foster,  8   Met.   (Mass.)        ^  Bell  r.  Hammond,  2  Leigh  (Va.),  416. 

562 


HIS   LIABILITY    TO   THIRD   PERSONS.  [§  728. 

gage,  so  far  as  the  riglits  of  such  subsequent  purchaser  are  con- 
cerned, is  dischai'ged.  The  fact  that  another  person  at  the  same 
time  assumed  the  debt  does  not  prevent  the  discharge,  if  the  sub- 
sequent purchaser  did  not  assent  to  the  substitution.^  This  rule 
is  applicable  as  well  to  the  case  of  a  subsequent  mortgagee, 
though  in  some  cases  the  effect  of  the  release  of  the  mortgagor's 
personal  liabilit^^  might  be  to  give  the  second  mortgage  priority 
over  the  first,  instead  of  absolutely  discliarging  the  premises  from 
the  lien.2 

728.  A  mortgagee  having  other  security  for  the  payment 
of  the  debt  secured  by  the  mortgage,  and  having  notice  of  a  subse- 
quent mortgage  upon  the  same  premises,  is  bound  in  equity  to 
apply  in  the  first  instance  to  the  payment  of  the  debt  the  security 
in  which  the  subsequent  mortgagee  does  not  share ;  and  if  the 
prior  mortgagee  under  such  circumstances  releases  the  other  se- 
curity, his  mortgage  is  to  the  extent  of  the  value  of  that  security 
satisfied  so  far  as  such  subsequent  mortgagee  is  concerned.^  In 
like  manner,  if  he  also  holds  personal  property  as  security  for  the 
same  debt,  he  may  be  compelled  by  the  heir  or  widow  of  the  mort- 
gagor to  resort  in  the  first  instance  to  the  personal  property,  so 
as  to  relieve  the  land  to  that  extent  from  the  burden  of  the 
debt.* 

Upon  the  same  principle,  a  building  association  holding  a  mort- 
gage upon  the  real  estate  of  one  of  its  stockholders,  whose  stock 
is  also  pledged  as  collateral  security  for  the  loan,  cannot  have 
recourse  to  the  mortgaged  premises  as  against  one  holding  a  sec- 
ond mortgage  upon  them,  until  it  has  sold  the  stock  and  applied 
the  proceeds  of  it  to  the  payment  of  the  mortgage  debt.^  This 
equity  cannot  be  defeated  by  a  levy  upon  the  stock  under  a 
judgment  obtained  by  a  creditor  against  the  mortgagor.  As 
against  such  creditor,  the  holder  of  a  subsequent  mortgage  is  en- 
titled to  have  the  stock  sold  and  applied  to  the  payment  of  the 
first  mortgage  before  recourse  is  had  to  the  land.^     The  court 

1  Coyle  V.  Davis,  20  Wis.  564.  *  Harrow    v.   Johnson,  3  Mete.  (Ky.) 

2  Sexton  V.  Piclcett,  24  Wis.  346.  578  ;  Davis  v.  Rider,  5  Mich.  423. 

8  Washington  Build.  &  Loan  Ass'n  v.        ^  Ked  Bank  Mat.  Build.  &  Loan  Ass'n, 
Beaghen,  27   N.  J.  Eq.   98  ;   Herbert  v.     v.  Patterson,  27  N.  J.  Eq.  223. 
Mich.   Build.    &    Loan    Ass'n,   2    C.   E.         «  Phillipsburg  Mut.  Loan  &  Build.  Ass'n 
Green  (N.  J.),  497.  v.  Hawk,  27  N.  J.  Eq.  355 ;  and  see  cases 

cited. 

663 


§§  729,  730.]     A  mortgagee's  rights  and  liabilities. 

may  order  a  senior  mortgagee  holding  other  security  for  his 
claim  to  exhaust  that  before  resorting  to  the  security  covered  by 
the  junior  mortgage.^ 

729.  So  in  like  manner  upon  the  insolvency  or  bankruptcy 
of  the  mortgagor,  the  mortgagee  may  do  as  he  pleases  about 
proving  his  claim  against  the  estate  of  the  debtor.  He  ma}'-,  if 
he  choose,  pay  no  regard  to  his  personal  claim  and  rely  upon  the 
land  alone.^  Or,  if  his  security  be  inadequate,  he  may  have  it 
valued,  and  prove  his  demand  for  the  balance.  But  if  he  prove 
his  whole  claim  against  the  estate  of  his  debtor,  without  refer- 
ence to  his  mortgage,  he  thereby  waives  his  mortgage  security ; 
and  in  this  respect  the  law  is  the  same  when  upon  the  death  of 
the  mortgagor  his  estate  is  represented  insolvent,  and  the  mort- 
gagee has  his  whole  claim  allowed,  and  receives  a  dividend  upon 
the  whole  ;  he  thereby  releases  his  security.^  It  is  by  force  of 
statute,  however,  that  a  mortgagee  is  prevented  from  proving 
his  whole  claim  against  the  estate  of  his  debtor,  either  during  his 
lifetime  or  after  his  decease,  and  also  resorting  to  the  mortgage 
for  the  balance.  Upon  the  death  of  the  mortgagor,  the  holder  of 
the  mortgage  is  not  bound  to  seek  payment  of  his  debt  out  of  the 
personal  estate,  by  presenting  his  claim  to  the  personal  represen- 
tative, and  the  only  effect  of  his  not  doing  so  within  the  time 
allowed  is  to  deprive  him  of  all  benefit  of  the  personal  estate. 
He  may  resort  to  the  land  after  his  claim  against  the  personal 
estate  of  the  deceased  is  barred.^ 

730.  As  against  a  subsequent  mortgagee  the  parties  to 
a  prior  mortgage  cannot  change  its  terms.  —  A  junior  mort- 
gagee has  the  right  upon  the  maturity  of  the  senior  mortgage  to 
redeem  it,  and  this  right  cannot  be  affected  by  an  agreement  be- 
tween the  parties  to  such  prior  mortgage,  fixing  upon  a  higher 
rate  of  interest  than  that  specified  in  the  mortgage.^  A  subse- 
quent mortgagee  is  presumed  to  have  acquired  his  interest  with 
reference  to  the  existing  liens  as  they  appear  of  record,  and  his 

1  Swift  r.  Conboy,  12  Iowa,  444.  <  Grafton   Bank   v.  Doe,  19  Vt.  463; 

2  Bennett  v.  Calhoun  Asso.  9  Kich.  (S.  Inge  v.  Boardman,  2  Ala.  331  ;  Trustees 
C.)  Eq.  163;  Walker  v.  Baxter,  26  Vt.  of  Jefferson  Colleger.  Dickson,  1  Freem. 
710.  (Miss.)  Ch.   474  ;    Patton  v.  Page,  4  Hen. 

8  Hooker  v.  Olmstead,  6  Pick.  (Mass.)     &  M.  (Va.)  449. 
481.  5  Gardner  v.  Emerson,  40  111.  296. 

564 


HIS   LIABILITY   TO   THIRD   PERSONS.  [§§  731,  732. 

rights  cannot  be  prejudiced  by  private  arrangements  between  the 
parties.! 

731.  Where  a  homestead  is  included  with  other  realty  in 
a  mortgage,  there  is  no  implied  obligation  on  the  mortgagee 
that  he  shall  first  exhaust  his  remedy  on  the  land  other  than  the 
homestead ;  but  he  may  release  the  other  land  and  still  maintain 
his  lien  on  the  homestead.^  "  It  is  said  that  the  homestead  be- 
longs to,  and  is  designed  by  the  law  for  the  family,  and  that 
their  rights  are  paramount  to  the  rights  of  creditors.  We  cannot 
assent  to  the  claim  as  thus  broadly  stated.  It  means  that  when  a 
creditor  takes  a  mortgage  on  the  homestead  and  other  property, 
though  nothing  is  expressed,  there  is  an  implied  agreement  to 
consider  the  homestead  as  a  sort  of  secondary  security,  a  security 
for  security,  that  the  other  property  mortgaged  is  the  primary 
security,  and  that  if  that  proves  insufficient,  and  only  when  that 
proves  insufficient  can  the  lien  on  the  homestead  be  enforced. 
That  partners  may  make  such  a  contract  is  unquestionable ;  that 
the  legislature  may  establish  such  a  rule,  is  probable."  ^  Thus, 
in  Iowa  the  rule  is  so  established  by  reason  of  the  provisions  of 
the  Code  of  that  state.^  And  it  was  there  held  that  when  one 
member  of  a  partnership  mortgaged  his  homestead  to  secure  a 
partnership  debt,  after  an  assignment  by  the  firm  for  the  benefit  of 
creditors,  the  mortgagee  must  first  look  to  the  partnership  assets, 
and  then  to  the  homestead  only  for  the  deficiency. ^ 

732,  Junior  mortgagee  not  affected  by  any  arrangement 
between  the  parties  to  the  prior.  —  It  is  clear  enough  that 
rights  of  subsequent  mortgagees  cannot  be  defeated  by  any  ar- 
rangement between  the  first  mortgagee  and  the  mortgagor,  or  by 
any  adjudication  of  their  respective  rights.  But  when  the  first 
mortgage  is  in  the  form  of  an  absolute  deed,  it  is  sometimes  diffi- 
cult to  determine  what  the  rights  of  subsequent  incumbrancers 
are,  or  how  these  rights  may  be  affected  by  subsequent  dealings 
of  the  grantor  and  the  grantee.  This  is  illustrated  by  a  case  in 
lowa,^  where  the  owner  of  land  sold  it  and  received  payment  for 

1  Whittacre  v.  Fuller,  5  Minn.  508.  *  Twogood  v.  Stephens,  19  Iowa,  405. 

2  Chapman  v.  Lester,  12  Kaus.  592.  ^  Dickson  v.  Chorn,  6  Iowa,  19. 

3  Per  Brewer,  J.,  in  Chapman  v.  Lester,  ^  Davis  v.  Rogers,  28  Iowa,  413. 
supra. 

565 


§  733.]  A  mortgagee's  rights  and  liabilities. 

it,  but  afterwards  loaned  a  sum  of  money  to  the  purchaser,  and 
having  made  no  deed  of  the  land,  it  was  agreed  that  he  should 
retain  the  title  of  the  land,  and  should  convey  it  upon  payment 
of  the  sum  loaned.  Subsequently,  and  while  the  purchaser  had 
no  title  other  than  this  contract,  he  mortgaged  a  part  of  the  land 
to  secure  a  debt.  Several  years  after  this  the  purchaser  brought 
an  action  upon  the  contract,  asking  for  a  conveyance  of  the  land 
or  judgment  for  the  amount  of  the  purchase  money  paid  upon 
it,  in  case  the  conveyance  could  not  be  enforced.  A  judgment 
was  rendered  in  behalf  of  the  purchaser,  which  was  satisfied  by 
the  payment  of  a  sum  of  money.  Soon  after  this  a  suit  was 
brought  to  foreclose  the  mortgage,  and  a  decree  of  foreclosure  was 
sustained.  It  was  said  that  the  transaction  between  the  vendor 
and  purchaser  of  the  land  amounted  to  a  mortgage  ;  that  the  pur- 
chaser could  have  conveyed  his  interest  or  estate  in  the  land  abso- 
lutely, and  that  he  could  mortgage  it  as  well.  It  is  plain  that 
the  first  mortgagee,  by  payment  of  the  judgment  against  him, 
acquired  only  that  interest  in  the  land  which  the  mortgagor  could 
have  conveyed  to  him  by  deed.  If  the  subsequent  mortgage  was 
valid  when  it  was  made,  it  could  not  be  defeated  by  such  convey- 
ance or  judgment ;  and  accordingly  it  was  held  that  the  first 
mortgagee  acquired  the  mortgagor's  interest  subject  to  the  subse- 
quent mortgage,  and  that  a  decree  should  be  entered  for  a  sale  of 
the  land  to  satisfy  it.^ 

733.  When  a  second  mortgagee  of  a  portion  of  the  prem- 
ises takes  subject  to  the  whole  amount  of  a  prior  mortgage.  — 
In  view  of  the  rule  that  a  conveyance  of  a  portion  of  the  mort- 
gaged premises  by  warranty  deed  leaves  the  remainder  of  the 
premises  primarily  liable  in  equity  for  the  whole  amount  of  the 
mortgage,  it  should  be  borne  in  mind  that  one  taking  a  mortgage 
of  such  residue  takes  it,  in  like  manner,  subject  to  the  whole 
amount  of  the  prior  mortgage.^  The  mortgagor  can,  of  course, 
give  no  greater  rights  than  he  himself  possesses.  He  has  no  equity 
to  compel  the  purchaser  to  contribute  to  the  payment  of  the  prior 
mortgage,  and  therefore  he  cannot  confer  upon  his  second  mort- 
gagee of  the  remainder  any  such  equit3^ 

There  may  be  circumstances,  however,  under  which  a  subsequent 

1  Davis  V.  Kogers,  supra.  *  Kellogg  v.  Kand,  11  Paige  (N.  Y.),  59. 

666 


HIS  LIABILITY   TO   THIRD   PERSONS.  [§  734. 

mortgagee  may  be  entitled  to  bis  mortgagor's  equity  to  compel 
anotber  person  to  discbarge  a  prior  mortgage;  as  for  instance 
wbere,  upon  tbe  dissolution  of  a  partnersbip,  one  of  tbe  partners 
has  agreed  to  pay  a  certain  partnersbip  debt  secured  by  a  mort- 
gage upon  tbe  land  of  tbe  otber  partner,  and  the  latter  has  after- 
wards mortgaged  it  again.^ 

734.  When  the  mortgagee  is  estopped  to  assert  his  mort- 
gage. —  A  mortgagee  who  stands  b}^  at  an  auction  sale  of  tbe 
property  by  tbe  mortgagor,  and  bears  tbe  announcement  made 
that  tbe  purchaser  will  get  an  unincumbered  title,  and  says  noth- 
ing, is  estopped  from  setting  up  bis  mortgage  against  one  who 
buys  at  such  sale  and  pays  his  money  under  the  impression  that 
he  is  getting  a  good  and  unincumbered  title,  even  though  tbe 
mortgage  was  duly  recorded  at  the  time  of  the  sale.  To  allow 
the  mortgage  to  be  set  up  would  be  a  fraud  on  the  purchaser,  al- 
though tbe  mortgagee  had  no  fraudulent  intent  in  not  correcting 
the  announcement.^ 

In  like  manner,  if  by  a  statement  that  his  mortgage  is  dis- 
charged he  lead  another  to  buy  tbe  property,  or  to  take  a  mort- 
gage upon  it,  he  cannot  afterwards,  as  against  such  purchaser  or 
mortgagee,  set  up  his  mortgage.^ 

A  mortgagee  may  be  estopped  from  asserting  his  mortgage  for 
a  larger  sum  than  he  states  to  a  purchaser  of  the  equity  of  re- 
demption to  be  due  him,  especially  if  he  uses  any  active  efforts 
to  induce  a  sale  of  the  property.  But  the  proof  of  the  facts  out 
of  which  the  estoppel  is  claimed  to  arise  should  be  clear  and 
satisfactory.  If  the  statement  of  the  mortgagee  as  to  the  amount 
due  is  a  mere  matter  of  opinion,  and  the  purchaser  relies  upon 
the  assurances  of  tbe  mortgagor  from  whom  he  purchases,  and  he 
might  by  tbe  use  of  reasonable  diligence  ascertain  tbe  true  amount 
of  tbe  incumbrance,  the  mortgagee  is  not  estopped  from  claiming 
the  amount  due  him  as  against  tbe  purchaser.  If  a  written  agree- 
ment as  to  tbe  amount  of  tbe  incumbrance  be  taken  from  the 
mortgagee,  before  completing  the  purchase,  the  latter  will  not  be 
allowed  to  prove  verbal  statements  and  assurances  made  by  the 

1  Kinney  v.  M'Cullough,  1  Sandf.  (N.  3  Lasselle  v.  Barnett,  1  Blackf.  (Ind.) 
Y.)  Ch.  370.  150. 

2  Markham  v.  O'Connor,  52  Ga.  183. 

667 


§  734.]  A  mortgagee's  rights  and  liabilities. 

mortgagee  as  to  the  nature  and  extent  of  the  incumbrance,  unless 
a  mistake  be  shown  in  the  agreement  as  written  ;  and  on  the 
other  hand,  the  mortgagee  will  be  estopped  from  claiming  any 
more  than  the  written  agreement  calls  for.^ 

1  Preble  v.  Conger,  66  111.  370. 
668 


CHAPTER  XVII. 

A  puechaser's  eights  and  liabilities. 

1.  Purchase   /Subject  to  a  Mortgage. 

735.  The  clause  in  a  deed  referring  to  the  existence  of  a 
prior  mortgage  is  of  much  importance  in  other  ways  than  in  de- 
termining whether  the  purchaser  engages  to'pay  the  mortgage,  or 
merely  buys  subject  to  it.  In  the  first  place,  it  may  qualify  the 
grantor's  liability  upon  the  covenants  of  the  deed  against  incum- 
brances by  showing  the  existence  of  the  mortgage,  and  that  as 
between  him  and  the  grantee  the  latter  is  to  pay  it.^  It  may  pre- 
vent, by  a  statement  as  to  what  an  incumbrance  upon  the  property 
is,  any  liability  on  the  part  of  the  grantor  to  the  penalties  imposed 
by  statute  upon  one  who  sells  incumbered  property  without  dis- 
closing the  incumbrance.  It  may  preclude  the  grantee  from  im- 
peaching the  validity  of  the  mortgage  existing  upon  the  property 
conveyed.^  It  may  subject  the  land  to  the  burden  of  the  mort- 
gage without  imposing  upon  the  grantee  any  personal  liability  to 
pay  it.^  It  may  have  an  important  bearing  upon  tlie  liability  of 
the  grantor  in  case  an  extension  of  the  mortgage  is  afterwards 
made  without  his  consent.^  It  may  render  the  grantee  directly 
liable  for  the  mortgage  debt  to  the  mortgagee,  or  it  may  make 
him  liable  merely  to  his  grantor.^  Moreover,  under  this  clause 
arise  questions  of  notice  affecting  others  who  may  claim  under  the 
deed.^  The  mode,  therefore,  in  which  this  clause  is  expressed  is 
of  extreme  importance,  both  in  the  drawing  of  the  instrument 
and  in  the  interpretation  of  its  effect. 

One  having  purchased  land  by  a  deed  with  covenants  of  seisin 

1  Collins  V.  Rowe,  1  Abb.  (N.  Y.)  N.  C.        ^  Gamsey  v.  Rogers,   47   N.    Y.   233  ; 
97.  Binsse  v.  Paige,  1  Abb.  (N.  Y.)  App.  Dec 

2  Ritter  V.  Phillips,  53  N.  Y.  .586.  138. 

8  Collins  I'.  Rowe,  1   Abb.  (N.   Y.)  N.        o  Campbell  v.  Vcdder,  1  Abb.    (N.  Y.) 
C.  97.  App.  Dec.  295. 

4  Calvo  i;.  Davies,  8  Hun  (N.  Y.),  222. 

669 


§  736.]  A  purchaser's  rights  and  liabilities. 

and  warranty  mortgaged  it  to  bis  grantor  for  the  purchase  money 
by  a  deed  containing  the  same  covenants.  Being  evicted  by  a 
paramount  title,  he  brought  an  action  against  his  grantor  on  his 
covenant  of  seisin.  The  action  was  held  to  be  maintainable,  the 
mortgagor's  covenants  not  operating  as  a  rebutter.^ 

When  land  is  conveyed  "  subject  to  "  a  mortgage,  and  the 
amount  of  it  is  deducted  from  the  consideration,  with  the  inten- 
tion that  it  shall  be  paid  by  the  grantee,^  it  is  important  that  the 
mortgage  be  excepted  from  the  covenants  of  the  mortgage,  other- 
wise the  grantor  may  be  held  to  have  covenanted  against  the  in- 
cumbrance, and  to  have  made  himself  liable  for  its  payment.^  The 
fact  that  the  incumbrance  is  mentioned  in  a  deed  to  which  refer- 
ence is  made  does  not  avail  to  qualify  the  covenants  of  a  deed.* 
Oral  evidence  that  the  parties  intended  or  agreed  that  the  in- 
cumbrance should  be  excepted  from  the  covenants  is  not  admis- 
sible, because  its  effect  would  be  to  vary  or  control  the  deed.^ 

736.  One  who  purchases  an  equity  of  redemption  by  a 
deed  without  covenants  takes  the  estate  charged  with  the  pay- 
ment of  the  mortgage  debt.  It  is  presumed,  in  the  absence  of  a 
special  contract  or  of  any  unusual  circumstance,  that  the  amount 
paid  was  the  price  of  the  property  purchased,  less  the  amount  of 
the  mortgage,  and  it  would  be  for  the  purchaser,  and  not  the 
seller,  to  discharge  the  incumbrance.^  In  such  case  therefore  the 
purchaser  cannot  pay  off  the  debt,  and  then  keep  the  mortgage 
alive  by  taking  an  assignment  of  it  to  himself,  and  set  it  off  against 
an  unpaid  balance  still  due  from  him  to  his  vendor.''  If  it  ap- 
pear that  the  incumbrances  were  not  deducted  from  the  consider- 
ation paid,  and  the  purchaser  has  given  back  a  mortgage  for  the 
purchase  money,  although  his  deed  be  without  covenants,  and  he 

1  §  68;  Sumner  v.  Barnard,  12  Met.  «  Estabrook  v.  Smith,  6  Gray  (Mass.), 
(Mass.)  459.  572.     In  this  case  the   covenant   against 

2  A  clause  obligating  the  grantee  to  incumbrances  excepted  the  mortgage,  but 
assume  an  existing  mortgage  may  be  as  the  covenant  of  warranty  did  not ;  and  it 
follows  :  "  Said  premises  are  hereby  con-  was  held  that  the  mortgagor  was.  bound 
veyed  subject  to  a  certain  mortgage,  dated,  to  pay  it. 

&c.,  and  recorded,  &c.,  and  of  which  the  *  Harlow  v.  Thomas,  15  Pick.  (Mass.) 

sum  of  $ is  now  due,  which  mortgage  66. 

the  said  grantee,  his  heirs  and   assigns,  ^  Spurr  v.   Andrew,  6   Allen   (Mass.), 

are  to  assume  and   pay,  the  said  amount  420. 

forming  a  part  of  the  above-named  con-  ^  Shuler  v.  Hardin,  25  Ind.  386. 

sideration."     Crocker's  Com.  Forms,  38.  ^  Atherton  v.  Toney,  43  Ind.  211. 

570 


PURCHASE   SUBJECT    TO   A    MORTGAGE.  [§  737. 

knew  of  the  existence  of  the  incumbrances,  he  may  pay  them  off, 
and  deduct  the  amount  from  the  mortgage  he  has  given. ^ 

When  one  purchases  land  expressly  subject  to  a  mortgage,  the 
land  conveyed  is  as  effectually  charged  with  the  incumbrance  of 
the  mortgage  debt  as  if  the  purchaser  had  expressly  assumed  the 
payment  of  the  debt,  or  had  himself  made  a  mortgage  of  the 
land  to  secure  it.^  The  difference  between  the  purchaser's  as- 
suming the  payment  of  the  mortgage,  and  simply  buying  subject 
to  the  mortgage,  is  simply  that  in  the  one  case  he  makes  him- 
self personally  liable  for  the  payment  of  the  debt,  and  in  the 
other  case  he  does  not  assume  such  liability.  In  both  cases  he 
takes  the  land  charged  with  the  payment  of  the  debt,  and  is  not 
allowed  to  set  up  any  defence  to  its  validity,  as  for  instance  that 
the  mortgage  is  void  wholly  or  in  part  on  account  of  usury .^ 

If  the  equity  of  redemption  be  sold  on  execution,  the  purchaser 
cannot  either  legally  or  equitably  claim  that  the  mortgagor  shall 
pay  off  the  mortgage.  The  purchase  is  made  subject  to  the  mort- 
gage, and  the  premises  as  between  the  purchaser  and  the  mort- 
gagor, become  primarily  liable  for  the  debt.* 

737.  One  who  has  purchased  subject  to  a  mortgage  is  not 
entitled  to  the  benefit  of  collateral  security  placed  in  the  hands 
of  the  mortgagee  by  the  vendor  after  the  execution  of  the  mort- 
gage. By  purchasing  in  this  way,  the  land  becomes  the  primary 
fund  for  the  payment  of  the  mortgage  debt,  and  the  purchaser 
has  nothing  to  do  with  any  other  security  taken  for  the  debt  not 
a  part  of  the  original  transaction.^ 

The  principles  of  equity  in  regard  to  the  marshalling  of  secu- 
rities are  not  applicable  to  the  case  of  a  mortgagee  and  a  subse- 
quent purchaser  of  the  equity  of  redemption  ;  but  are  confined  to 
cases  where  two  or  more  persons  are  creditors  of  the  same  debtor, 
and  have  successive  demands  upon  the  same  property,  the  one 
prior  in  right  having  other  securities.  The  purchaser  takes  what 
he  purchases  —  the  equity  of  redemption,  and  nothing  more.  He 
acquires  no  equitable  interest  in  other  securities  held  by  the  mort- 

1  Wolbert  v.  Lucas,  10  Pa.  St.  73.  *  Russell   i-.  Allen,  10   Paige  (N.  Y.), 

2  Sweetzer  v.  Jones,  35  Vt.  317.  249  ;  Vanderkemp  v.  Shelton,  11    lb.  28  ; 
8  Green  v.  Turner,  38  Iowa,  112  ;  Grei-     S.  C.  Clark  Ch.  321. 

ther  r.  Alexander,  15  Iowa,  470;  Perry  i;.         ^  Brewer  v.  Staples,  3  Sandf.   (N.  Y.) 
Kearns,  13  Iowa,  174.  Ch.  579. 

571 


§§  738-740.]     A  purchaser's  rightts  and  liabilities. 

gagee,^  and  he  has  no  right  to  have  the  mortgage  debt  charged 
upon  the  mortgagor  personally  in  exoneration  of  the  land.^ 

738.  Such  purchaser  not  personally  liable  for  the  debt.  — 
If  the  purchaser  buy  a  mere  equity  of  redemption,  he  is  not  per- 
sonally liable  for  the  mortgage  debt.  He  may  give  up  the  prop- 
erty at  any  time  in  satisfaction  of  the  lien.^  The  mortgage  debt 
remains  an  incumbrance  upon  the  estate,  and  a  debt  of  the  mort- 
gagor ;  but  not  a  debt  of  the  person  buying.  In  the  absence  of 
a  special  agreement  to  assume  the  mortgage,  the  purchaser  is  not 
personally  liable  for  it.^ 

739.  The  purchase  of  a  paramount  title  by  the  grantee  of 
the  mortgagor  does  not  enure  to  the  benefit  of  the  mortgagee,  nor 
does  it  operate  in  any  way  to  confirm  the  mortgage  title.^ 

2.  Assumption  of  Mortgage  hj  Purchaser. 

740.  Generally,  one  purchasing  land  subject  to  an  existing 
mortgage  does  not  merely  purchase  the  equity  of  redemption,  but 
purchases  the  whole  estate,  and  assumes  the  payment  of  the  mort- 
gage as  a  part  of  the  purchase  money  of  it.  The  vendor,  espe- 
cially if  he  be  also  the  mortgagor,  usually  requires  such  an  under- 
taking on  the  part  of  the  purchaser,  so  that  the  debt  may  be  a 
charge  upon  him,  and  not  merely  a  charge  upon  the  land.  As 
between  these  parties  the  purchaser  thus  becomes  primarily  liable, 
and  the  mortgagor  only  a  surety  for  the  payment  of  the  debt. 
The  mortgaged  property,  moreover,  becomes,  as  between  them, 
the  primary  fund  for  the  payment  of  the  debt.  The  purchaser 
having  made  the  mortgage  debt  his  own  debt  cannot  take  an  as- 
signment of  the  mortgage,  and  hold  it  as  an  independent  title, 
but  it  is  thereupon  merged  and  discharged.^  If  a  senior  mort- 
gagee becomes  the  purchaser,  and  assumes  the  payment  of  a  jun- 

1  Stevens  v.  Church,  41  Conn.  369.  ^  Miller  v.  Watson,  1    S\v.  374 ;  Lilly 

2  Cherry  v.  Monro,  2  Barb.  (N.  Y.)  Ch.  v.  Palmer,  51  111.  331  ;  Russell  v.  Pistor, 
618;  Brewery.  Staples,  3  Sand.  (N.  Y.)  7  N.  Y.  171;  Jumel  v.  Jumel,  7  Paige 
Ch.  579;  Mathews  i;.  Aikin,  1  N.  Y.  595.  (N.    Y.),   591;    Blyer   v.   MonhoUand,  2 

3  Tichenor  v.  Dodd,  3  Green  (N.  J.)  Sandf.  (N.  Y.)  Ch.478 ;  Gilbert  i-.  Averill, 
Ch.  454,  and  cases  cited.  15  Barb.  (N.  Y.)  20  ;  Andrews  v.  Wolcott, 

*  Johnson  v.  Monell,  13  Iowa,  300.  16  lb.  21. 

s  Knox  V.  Easton,  38  Ala.  345. 

572 


ASSUMPTION   OF   MORTGAGE   BY   PURCHASER.      [§§  741,  742. 

ior  mortgage,  his  own  mortgage  is  merged  and  discharged,  so 
that  the  junior  mortgage  takes  precedence.^ 

When  the  lands  have  thus  become  the  primary  fund  for  the 
payment  of  the  debt,  subsequent  purchasers  are  chargeable  with 
notice  of  this  equitable  right  to  resort  to  the  land,  equally  as  if 
their  own  deeds  in  terms  disclosed  that  they  were  to  take  the 
premises  subject  to  the  payment  of  the  mortgage.^ 

One  who  has  assumed  the  payment  of  a  mortgage  cannot  de- 
fend against  a  claim  of  dower  by  the  widow  of  the  grantor,  by 
setting  up  an  assigment  of  it  to  himself  upon  payment  of  the 
amount  due  upon  it,  she  having  joined  to  release  dower  in  the 
mortgage,  but  not  in  the  deed  to  him.^  In  like  manner,  one  who 
has  assumed  the  payment  of  two  mortgages  upon  the  granted 
premises  cannot,  by  taking  an  assignment  of  the  first  mortgage, 
defend  against  the  second.* 

741.  The  mortgagor  becomes  a  surety.  —  A  purchaser  who 
assumes  the  mortgage  becomes  as  to  the  mortgagor  the  principal 
debtor,  and  the  mortgagor  a  surety  ;  ^  but  the  mortgagee  may  treat 
both  as  principal  debtors,  and  may  have  a  personal  decree  against 
both.^  The  mortgagee  may  release  the  mortgagor  from  his  per- 
sonal liability  in  such  case  without  discharging  the  land,  or  the 
grantee  who  assumed  the  debt.'  He  may,  by  his  dealings  with 
the  purchaser  and  mortgagor,  recognize  the  former  as  the  principal 
debtor,  and  the  latter  as  surety  towards  himself. 

742.  When  extension  discharges  the  mortgagor.  —  A  pur- 
chaser having  assumed  the  payment  of  an  existing  mortgage,  and 
thereby  become  the  principal  debtor  and  the  mortgagor  a  surety 
of  the  debt  merely,  an  extension  of  the  time  of  payment  of  the 

1  Fowler  V.  Fay,  62  111.  375.  Trotter  v.  Hughes,  12  N.  Y.  74;  Belmont 

'■^  Weber  v.  Zeimet,  30  Wis.  283;  Free-  v.  Coman,  22  N.  Y.  438  ;  Burr  r.  Beers, 

man  v.  Auld,  44  N.  Y.  50;  S.  C.  37  Barb.  24  N.  Y.  178  ;  Thorp  v.  Keokuk  Coal  Co. 

587,  and  cases  cited  ;    Calvo  v.  Davies,  8  48  N.  Y.  253  ;  Rubens  v.  Prindlc,  44  Barb. 

Hun  (N.  Y.),  222.  (N.  Y.)   336;    Johnson   i'.  Ziuk,   52   lb. 

3  McCabe  v.  Swap,  14  Allen  (Mass.),  396. 

188.  «  Corbett  v.  Waterman,  11    Iowa,   86; 

<  Converse  I!.  Cook,  8  Vt.  164.  Thompson    v.   Bertram,    14    Iowa,   476; 

s  Wales  V.  Sherwood,  52  How.  (N.  Y.)  Ilebert  j;.  Doussan,  8  La.  Ann.  267. 

Pr.  413;  Calvo  u.  Davies,  8  Hun  (N.  Y.),  7  Tripp   v.  Vincent,  3    Barb.    (N.  Y.) 

222  ;  Comstock  v.  Drohan,  8  lb.  373  ;  At-  Ch.  613. 
lantic  Dock  Co.  v.  Leavitt,  54  N.  Y.  35 ; 

o<3 


§§  743,  744.]     A  purchaser's  rights  and  liabilities. 

mortgage  by  an  agreement  between  the  holder  of  it  and  the  pur- 
chaser, without  the  concurrence  of  the  mortgagor,  discharges  him 
from  all  liability  upon  it.  The  holder  cannot  enlarge  the  time  of 
payment  and  protect  himself,  by  reserving  his  rights  against  the 
suret}'^  in  the  agreement  of  extension.  Such  a  reservation  has  no 
effect  unless  the  mortgagor  agree  to  it.^ 

743.  When  the  purchaser  assumes  a  proportionate  part 
of  the  mortgage.  —  A  purchaser  of  a  portion  of  the  mortgaged 
premises,  who  assumes  the  payment  of  a  proportionate  part  of  the 
mortgage  debt,  is  bound  to  pay  such  part  in  exoneration  of  the 
residue.^ 

A  purchaser  of  part  of  a  tract  of  land,  who  pays  off  a  mortgage 
upon  the  whole,  i^  entitled  to  be  subrogated  to  the  mortgage  ;  ^ 
because  the  burden  of  such  a  mortgage  rests  only  in  part  upon  his 
land,  and  is  in  part  to  be  borne  by  the  owners  of  the  remaining 
portions  of  it. 

But  on  the  other  hand,  if  one  purchase  a  portion  of  the  mort- 
gaged premises,  under  an  agreement  that  he  will  assume  and  pay 
the  whole  of  the  mortgage  debt,  then  the  whole  burden  of  the 
debt  is  annexed  to  that  portion  by  express  contract.* 

A  purchaser  of  a  portion  of  the  estate  subject  to  a  mortgage 
has  no  equity  to  have  his  land  relieved  from  the  burden  of  the 
mortgage,  as  against  a  subsequent  purchaser,  when  it  was  a  part  of 
his  contract  of  purchase  that  he  should  pay  the  purchase  money 
directly  in  satisfaction  of  the  mortgage.  On  the  contrary,  the 
subsequent  purchaser  has  an  equitable  right  to  have  the  purchase 
money  so  applied  in  exoneration  of  his  own  land  ;  and  as  against 
him  a  subsequent  agreement  between  the  mortgagor  and  the  first 
purchaser  making  a  different  application  of  the  purchase  money 
is  invalid.^ 

744.  The  purchaser  is  not  allowed  to  defend  against  the 
mortgage  he  has  assumed  to  pay  on  the  ground  that  it  was 
made  without  consideration,  and  therefore  not  valid  against  his 

1  Calvo  V.  Davies,  8  Hun  (N.  Y.),  222.  3  Salem  v.  Edgerly,  33  N.  H.  46 ;  Cham- 
See  Corbett  i'.  Waterman,  11  Iowa,  86.  plin  v.  Williams,  9  Pa.  St.  341. 

-  Torrey  v.  Bank  of  Orleans,  9  Paige  *  Welch    v.   Beers,   8    Allen    (Mass.), 

(N.  Y.),  649;  S.  C.  7   Hill  (N.  Y.),  260;  151. 

Hilton   V.  Bissell,  1    Sand.   (N.   Y.)  Ch.  ^  Baring  v.   Moore,  4   Paige  (N.  Y.), 

407.  166. 
574 


ASSUMPTION   OF   MORTGAGE   BY   PURCHASER.  [§  744. 

grantor  ;  the  latter  Laving  appropriated  a  portion  of  the  purchase 
price  of  the  hind  to  the  payment  of  a  sum  of  money  to  a  third 
person,  and  made  it  a  charge  upon  the  land,  it  does  not  matter 
whether  there  was  any  legal  obligation  upon  him  to  pay  it,  or 
whether  it  was  at  the  time  of  the  sale  a  lien  upon  the  land  ; 
his  grantee,  having  undertaken  to  pay  it,  is  precluded  from  assail- 
ing its  validity.^ 

One  who  has  assumed  the  payment  of  a  mortgage  cannot  con- 
test the  validity  of  it,  or  show  that  the  amount  assumed  by  him 
is  not  due  upon  it.^  He  cannot  object  to  the  mortgage  on  the 
ground  of  an  alleged  defect  in  the  manner  of  execution,  as  that 
it  was  executed  by  an  attorney  whose  authority  is  not  shown, 
when  the  mortgagor  himself  does  not  interpose  that  objection.^ 

Although  the  consideration  of  the  mortgage  assumed  has  not 
been  full}-  paid,  the  grantee  cannot  redeem  except  by  paying  the 
mortgage  in  full.  Thus,  where  a  mortgage  was  given  to  secure  a 
loan  and  certain  advances  which  the  mortgagee  agreed  to  make, 
one  claiming  under  the  grantee  sought  to  redeem  on  paying  the 
amount  of  the  loan  secured,  without  the  advances  which  had  not 
at  that  time  been  made  ;  and  in  fact  the  condition  on  which  they 
were  to  be  made  had  not  been  performed ;  but  it  was  determined 
that  the  plaintiff  must  pay  the  amount  of  the  mortgage  in  full  in 
order  to  redeem,  and  that  the  mortgagee  would  hold  the  balance 
above  the  amount  advanced  by  him  in  trust  for  the  mortgagor,  or 
for  the  holder  of  the  agreement  for  the  advances,  when  that  has 
been  assigned.* 

It  has  even  been  held  that  one  who  has  bought  subject  to  a 
mortgage,  without  assuming  the  payment  of  it  so  as  to  make  him- 
self personally  liable,  cannot  contest  the  validity  of  the  mortgage 
lien.  When  the  amount  of  the  mortgage  has  been  deducted  from 
the  amount  of  the  consideration  of  the  purchase,  it  is  in  effect  an 
agreement  that  so  much  of  the  purchase  money  shall  be  paid  to 
the  person  holding  the  mortgage,  and  the  mortgage  is  thus  made 
a  lien  to  the  full  amount  of  its  face,  although  the  mortgagee  has, 
in  fact,  paid  only  a  paii;  of  the  consideration,  or  although  the 
mortgage  is  subject  to  other  defences  in  the  hands  of  the  mort- 

1  Crawford  v.  Edwards,  33  Mich.  354.       111.  501 ;  Greither  v.  Alexander,  15  Iowa, 

2  Ritter  V.  Phillips,  53  N.  Y.  586.  470. 

8  Pidjjeon   V.  Trustees   of  Schools,  44        *  Cox  v.  Iloxie,  115  Mass.  120. 

575 


§§  745-747.]     A  purchaser's  rights  and  liabilities. 

gagor.     By  conveying  the  land  subject  to  a  mortgage,  the  mort- 
gagor provides  for  its  payment  in  full  out  of  the  purchase  money .^ 

745.  Such  purchaser  cannot  set  up  usury.  —  It  is  no  defence 
on  behalf  of  such  purchaser  that  the  mortgage  assumed  by  him 
is  void  for  usury.^  But  one  who  buys  land  with  the  expressed 
intention  on  his  part,  and  on  the  pavt  of  the  grantor,  to  avoid  a 
previous  mortgage  on  the  ground  of  usury,  may  take  this  defence.^ 
When  the  purchaser  has  in  no  way  agreed  to  pay  the  mortgage 
debt,  or  agreed  that  it  should  be  paid  out  of  the  land,  he  may  take 
advantage  of  usury  in  the  mortgage  to  avoid  it. 

A  voluntary  assignee  of  the  mortgagor  for  payment  of  his  debts 
may  set  up  usury  in  the  mortgage.* 

746.  When  a  purchaser  may  contest  the  mortgage.  —  But 
one  who  has  bought  the  equity  of  redemption  by  a  deed  with 
covenants  of  warranty  has  a  right  to  prove  a  payment  by  the 
mortgagor,  by  which  the  land  is  relieved  wholly  or  in  part  from 
the  incumbrance.^ 

When  the  description  of  the  premises  as  subject  to  a  mortgage 
is  merely  for  the  purpose  of  protecting  the  grantor  from  liability 
upon  his  covenants,  the  grantee  is  not  charged  with  the  payment 
of  the  mortgage  debt.  Accordingly  it  has  been  held  that  a  recital 
in  a  deed  that  the  property  is  subject  to  a  mortgage,  which  is 
excepted  out  of  the  covenants  in  the  deed,  does  not  estop  the 
grantee  to  dispute  the  validity  of  the  mortgage.^ 

747.  Purchase   under  execution  sale.  —  Where  by  statute 

1  Freeman  v.  Auld,  44  N.  Y.  50 ;  S.  C.        ^  Newman   v.  Kershaw,   10  Wis.  333  ; 
37  Barb.  587,  and  cases  cited  ;  Hardin  v.    Ludington  v.  Harris,  21  Wis.  239. 

Hyde,  40  Barb.  (N.  Y.)  435.     See,  how-  *  Pearsall  v.  Kingsland,3  Edw.  (N.  Y.) 

ever,  Hartley  v.  Tatham,  2  Abb.  (N.  Y.)  195. 

Dec.  333;  10  Bosw.  273,  holding  that  such  ^  Williams   v.   Thurlow,   31    Me.   392. 

grantee  may  show  part  payment  of  the  See  Hartley  v.  Tatham,  2  Abb.  (N.  Y.) 

mortgage.     See  §  746.  Dec.  333;  S.  C.  1  Keyes,  222;  10  Bosw. 

2  DeWolf  V.  Johnson,  10  Wheat.  392  ;  273. 

Cramer  v.  Lepper,  26  Ohio  St.  59  ;  Busby  ^  Weed  Sewing  Machine  Co.  v.  Emer- 

V.  Finn,  1  lb.  409;  Bearce  v.  Barstow,  9  son,  115  Mass.  554.     Tlie  grantor  in  this 

Mass.  45  ;  Hartley  v.  Harrison,  24  N.  Y.  case  was  not  the  mortgagor,  though  this 

170,  and  cases  cited  ;  Sands  u.  Church,  6  N.  fact  was  not  noticed  in  the  opinion.     See 

Y.  347  ;  Shufclt  v.  Shufelt,  9  Paige  (N.  §  744. 
Y.),  137  ;  Frost  v.  Shaw,  10  Iowa,  491. 
576 


PERSONAL    LIABILITY    OF   PURCHASER.  [§  748. 

only  incumbered  land  can  be  sold  on  execution,  an  execution  in 
other  cases  being  levied  upon  the  land,  a  purchaser  of  an  equity 
of  redemption  on  execution  is  estopped  to  deny  the  existence  and 
validity  of  the  mortgage,  because  he  bought  only  an  equity  of  re- 
demption, and  if  there  is.no  mortgage  there  can  be  no  such  equity. 
When,  however,  there  are  more  mortgages  than  one,  if  any  of 
them  are  fraudulent,  or  void,  or  fully  paid,  the  purchaser  on  ex- 
ecution may  contest  such  and  redeem  from  the  valid  incum- 
brances.^ 

A  grantee  who  has  not  agreed  to  pay  the  mortgage  debt  is  not 
affected  by  an  agreement  to  do  so  made  by  his  grantor.  But 
after  the  first  grantee  has  covenanted  to  pay  the  mortgage  debt,  a 
like  covenant  in  his  deed  to  the  second  grantee  makes  the  latter 
personally  liable  to  pay  it,  in  exoneration  of  the  mortgagor,  who 
is  in  equity  entitled  to  the  benefit  of  such  undertaking  in  the 
same  manner,  as  if  it  had  been  recited  in  a  conveyance  by  him 
directly  to  the  second  grantee.^ 

3.  Personal  Liability  of  Purchaser. 

748.  A  deed  which  is  merely  made  subject  to  a  mortgage 
specified,  does  not  alone  render  the  grantee  personally  liable  for 
the  mortgage  debt.  To  create  such  liability  there  must  be  such 
words  as  will  clearly  import  that  the  grantee  assumed  the  obliga- 
tion of  paying  the  debt.^  It  is  not  necessary  that  any  particular 
formal  words  should  be  used,*  but  that  the  intention  to  impose 
upon  the  grantee  this  obligation  should  clearly  appear.-^  A  pur- 
chaser of  land  accepting  a  deed  expressly  conveying  it  subject  to 
a  mortgage,  and  excepting  it  from  the  covenants,  is  not  himself 
personally  liable  to  pay  it,  unless  he  covenants  to  do  so.     The 

1  Stebbins  v.  Miller,  12  Allen  (M.iss.),  C.  97  ;  Trotter  v.  Hughes,  12  N.  Y.  74; 
591.  See  Russell  v.  Dudley,  3  Met.  Belmont  i-.  Coman,  22  N.  Y.  438 ;  Biusse 
(Mass.)  147-151,  per  Shaw,  C.J.  v.  P<aige,   1    Keyes  (N.  Y.),  87;    S.  C.  I 

2  Torrey  v.  Bank  of  Orleans,  9  Paige  Abb.  App.  Dec.  138;  Stebbins  v.  Hall,  29 
(N.  Y.),  649.  Barb.  (N.  Y.)  524;  Tillotson   v.  Boyd,  4 

3  Weed  Sewing  Machine  Co.  v.  Emer-  Sandf.  (N.  Y.)  516;  Murray  v.  Smith,  1 
son,  115  Mass.  554;  Strong  v.  Converse,  Duer  (N.  Y^),412;  Johnson  r.  Monell,  13 
8  Allen  (Mass.),  557  ;  Drury  v  Treraont  Iowa,  300 ;  Hull  v.  Alexander,  26  Iowa, 
Improvement  Co.  13  lb.  168,  171  ;  Bum-  569. 

gardncr  v.    Allen,   6   Munf.    (Va.)   439;         *  Belmont  u.  Coman,  22  N.  Y.  438. 
Fowler  v.  Fay,  62  111.375;  Comstock  v.        ^  Stebbins  v.  Hall,  29    Barb.    (N.   Y.) 
Hitt,  37  111.  546  ;  Dunn  v.  Rodgers,43  111.     529. 
260;  Collins  v.  liowe,  1  Abb.  (N.  Y.)  N. 

VOL.  I.  37  577 


§  749.]  A  purchaser's  rights  and  liabilities. 

land  in  sucli  case  is  primarily  liable  as  between  the  vendor  and 
purchaser ;  and  the  vendor  is  liable  for  any  deficiency  after  a  fore- 
closure sale  fairly  made.^  If  such  purchaser  by  collusion  with 
the  mortgagee  buy  the  land  at  the  foreclosure  sale  for  a  sum  less 
than  its  value,  and  less  than  the  mortgage  debt,  the  vendor  may 
have  the  sale  set  aside  ;  and  such  collusion  would  be  a  defence 
in  a  suit  against  him  for  the  deficiency.^ 

When  the  mortgage  has  been  thus  assumed  by  a  purchaser  he 
may  be  made  a  party  to  a  proceeding  to  foreclose,  and  a  personal 
judgment  had  against  him  ;  or  he  may  be  sued  on  his  personal 
liability  without  any  proceeding  to  foreclose.^ 

It  is  unusual  for  the  grantor  to  take  any  note  or  other  security 
from  a  grantee  who  has  assumed  the  payment  of  a  mortgage ;  but 
if  notes  be  taken  for  the  amount  of  the  debt  assumed,  in  the  ab- 
sence of  fraud  or  undue  advantage  on  the  part  of  the  grantor,  a 
court  of  equity  will  not  compel  the  surrender  of  the  notes,  or  in- 
quire into  the  authority  of  the  grantor's  agent  who  took  them, 
but  will  leave  the  purchaser  to  his  remedy  at  law.'^ 

749.  An  agreement  that  the  amount  of  a  mortgage  upon 
the  granted  premises  shall  be  paid  as  a  part  of  the  purchase 
money  is  in  effect  an  assumption  to  pay  the  mortgage,  and  not 
merely  a  taking  of  the  property  subject  to  the  mortgage.  The 
mortgage  in  such  case  is  charged  upon  the  purchase  money,  and 
not  upon  the  land  merely.^  So  much  of  the  consideration  as  is 
requisite  to  pay  the  mortgage  is  taken  from  the  consideration  and 
appropriated  by  the  parties  to  the  payment  of  the  mortgage,  and 
equity  raises  upon  the  conscience  of  the  purchaser  an  obligation 
.to  indemnify  the  mortgagor  against  the  mortgage  debt.  If  he 
be  compelled  to  pay  it,  he  may  in  equity  compel  the  purchaser 
to  refvind  the  money  so  paid.  There  is  an  implied  promise  on 
the  part  of  the  purchaser  to  pay  the  mortgage  when  it  is  due,  or 
if  it  be  already  due,  to  pay  it  forthwith,  or  within  a  reasonable 

1  Johnson  v.  Zink,  51  N.  Y.  333,  and  &  Thayer  v.  Torrey,  37  N.  J.  L.  339  ; 

cases  cited.  Tichenor  v.  Dodd,  3    Green   (N.  J.)   Ch. 

'■^  Cleveland  v.  Southard,  25  Wis.  479.  454.     In  the  latter  case  the  terms  of  the 

8  Thompson  v.  Bertram,  14  Iowa,  476 ;  mortgage  were,  "  subject  to  the  payment 

Corbett  ?;.  Waterman,  11  Iowa,  87  ;  Moses  of   a   certain   mortgage,   «&c.,  which   said 

v.  Clerk  of  Dallas  Dist.  Court,  12  Iowa,  mortgage,  or  the  amount  thereof,  is  com- 

140  ;  Burr  v.  Beers,  24  N.  Y.  178.  puted  as  so  much  of  the  consideration  to 

*  Dorr  V.  Peters,  3  Edw.  (N.  Y.)  132.  be  paid." 
578 


PERSONAL   LIABILITY    OF   PURCHASER.  [§  750. 

time  ;  ^  and  the  burden  of  proof  is  upon  the  purchaser  who  has 
assumed  a  mortgage  and  chiims  that  he  has  performed  his  obliga- 
tion, to  sliow  that  he  has  done  so.^ 

A  stipulation  that  the  conveyance  is  made  "subject  to  the 
payment  "of  an  outstanding  mortgage,  or  any  equivalent  ex- 
pression which  clearly  implies  an  obligation  intentionally  created 
by  the  one  party  and  assumed  by  the  other,  will  constitute  a 
personal  obligation  for  its  payment.^ 

750.  Even  a  verbal  promise  by  a  purchaser  to  assume  and 
pay  a  mortgage  is  valid,  and  may  be  enforced  in  equity  not  only 
by  the  grantor  but  by  the  holder  of  the  mortgage.^  A  covenant 
in  the  deed  that  the  premises  are  free  from  incumbrances,  or  a 
recital  that  the  consideration  had  been  paid  in  full,  does  not  estop 
either  the  grantor  or  the  holder  of  the  mortgage  from  proving 
the  agreement  and  recovering  upon  it.^ 

The  assumption  of  the  payment  may  be  proved  by  parol  evi- 
dence, although  the  deed  to  the  purchaser  contains  covenants  of 
warranty,  and  makes  no  mention  of  the  mortgage,  or  is  simply 
subject  to  it.^ 

The  owner  of  a  large  lot  of  land,  subject  to  a  mortgage,  con- 
veyed a  portion  of  it  with  covenants  of  warranty  against  the 
mortgage.  Subsequently  the  grantee  offered  to  purchase  the 
residue  at  a  stated  price,  and  to  assume  as  part  of  it  the  debt 
secured  by  the  mortgage,  and  to  pay  the  balance  in  monej'.  This 
offer  was  accepted,  and  a  deed  given  in  which  the  consideration 
named  was  simply  the  value  of  the  equity  of  redemption,  and 
which  conveyed  the  land  subject  to  the  mortgage,  and  contained 
a  general  covenant  against  incumbrances  except  this  mortgage. 
The  purchaser  thus  took  the  land  last  purchased,  subject  to  the 
mortgage.  The  deed  did  not  state  that  he  assumed  the  debt, 
nor  did  it  have  any  provision  to  that  effect,  and  therefore  the 
mere  acceptance  of  the  deed  did  not  make  him  personally  liable 
to  pay  the  debt  or  discharge  the  incumbrance.  In  the  absence 
of  other  evidence,  he  merely  purchased  the  equity  of  redemption. 

1  Braman  v.  Dowse,  12   Cush.  (Mass  )         *  Bolles   v.  Beach,  2   Zab.  N.  J.  6S0 ; 
227.  Wilson  v.  King,  23  N.  J.  150. 

2  Jewett   V.  Draper,  6   Allen   (Mass.),        ^  Wilson  v.  King,  supra. 

434.  ®  Bowen  v.  Kurtz,  .37  Iowa,  239. 

8  Stebbins   v.   Hall,  29   Barb.  (N.  Y.) 
524. 

579 


§§  751,  752.]     A  purchaser's  rights  and  liabilities. 

But  having  by  his  proposal  to  purchase  assumed  the  payment  of 
the  mortgage,  it  became  his  duty  to  the  grantor  to  pay  it.  More- 
over, the  grantor  was  released  by  this  agreement  from  the  cove- 
nant of  his  first  deed  against  the  mortgagee.^ 

A  letter  of  a  second  mortgagee  to  the  holder  of  the  prior  mort- 
gage, which  was  due,  saying  that  he  was  willing  to  agree  to  see 
him  paid  $500  on  account  of  the  first  mortgage  within  sixteen 
months,  was  held  a  promise  to  pay  this  sum.^ 

751.  When  purchaser  bound  to  indemnify  the  mortgagor.  — 
But  whenever  the  mortgage  debt  forms  a  part  of  the  considera- 
tion of  the  purchase,  although  the  purchaser  has  not  entered  into 
any  covenant  or  agreement  to  pay  it,  he  is  bound  to  that  extent" 
to  indemnify  the  grantor.     The  law  implies  a  promise  to  that 

I  effect  from  the  nature  of  the  transaction.^ 

The  acceptance  of  a  deed  which  states  that  the  grantee  is  to 
pay  a  mortgage  existing  on  the  premises  implies  a  promise  on  his 
part  to  pay  the  debt,  and  he  is  liable  personally  in  a  foreclosure 
suit.*  It  does  not  matter,  so  far  as  concerns  the  liability  of  pur- 
chaser in  such  case,  that  his  deed  was  only  intended  as  a  secu- 
rity for  a  debt.^ 

752.  The  grantee  is  bound  by  accepting  the  deed. — To 
create  a  liability  on  the  part  of  the  grantee  to  pay  an  existing 
mortgage,  it  is  not  necessary  that  he  should  sign  the  deed  or  any 
obligation  ;  ^  his  acceptance  of  a  deed  imposing  this  obligation 
upon  him  is  all  that  is  necessary." 

By  the  acceptance  of  a  deed  which  provides  that  the  grantee 
shall  assume  and  pay  a  specified  mortgage,  he  binds  himself  as 
effectually  as  he  would  by  executing  the  deed  himself  as  an  inden- 

1  Drury  v.  Tremont  Improvement  Co.     son,  4  Ohio  St.  333  ;  Stevenson  v.  Black, 
13  Allen  (Mass.),  168.  1  N.  J.  Eq.  (Sax.)  338  ;  Klapworth  v.  Dress- 

2  Colgin  V.  Henley,  6  Leigh  (Va.),  85.       ler,  13  N.  J.  Eq.  (2  Beas.)  62. 


3  Townsend  v.  Ward,  27  Conn.  610 
Dorr  V.  Peters,  3  Edw.  (N.  Y.)  132 
Marsh  v.  Pike,  1   Sandf.  (N.  Y.)  Ch.  210 


*  Bishop  V.  Douglass,  25  "Wis.  696. 
5  Ricard  v.  Sanderson,  41  N.  Y.  179. 
s  Atlantic  Dock  Co.  v.  Leavitt,  54  N. 


Blyer  v.  MonhoUand,  2  lb.  478 ;  Flagg  v.  Y.  35,  and  cases  cited. 

Thurber,  14  Barb.  (N.  Y.)   196;  Cornell  ''  Spaulding   v.   Hallenbeck,   35   N.  Y. 

u.  Prescott,  2  Barb.  (N.  Y.)  16  ;  Scott  v.  204;    aff'g    39    Barb.    79;    30   lb.    292; 

Featherstou,  5  La.  Ann.  306  ;  Schlatre  v.  Wales  v.  Sherwood,  1  Abb.  (N.  Y.)  N.  C. 

Greaud,  19  lb.  125  ;  Thompson  v.  Thomp-  101,  note. 
580 


PERSONAL  LIABILITY   OF  PURCHASER.        [§§  753-755. 

ture.^  This  provision  becomes  an  express  agreement  on  his  part 
for  the  fulfihnent  of  which  he  is  personally  liable  not  only  to  his 
grantor,  but  the  benefit  of  it  enures  to  the  mortgagee  who  may 
enforce  it  directly  against  such  purchaser.^  When  foreclosure  is 
made  by  an  equitable  suit,  the  mortgagee  may  treat  both  the 
vendor  and  jDurchaser  as  principal  debtors  to  him,  and  may  have 
a  personal  decree  against  either  or  both  of  them. 

753.  A  married  woman  is  liable  on  her  covenant  to  as- 
sume a  mortgage  made  in  a  deed  of  real  estate  to  her  own  sep- 
arate use  or  benefit.  It  is  a  covenant  for  the  benefit  of  her  sep- 
arate estate,  or  to  pay  a  portion  of  the  purchase  money  of  real 
estate  conveyed  to  her.^ 

754.  What  will  avoid  the  purchaser's  liability.  —  Such  pur- 
chaser cannot  avoid  his  liability  to  pay  the  mortgage,  on  the 
ground  that  through  a  mistake  in  the  description  he  acquired  no 
legal  title  to  the  land  intended  to  be  conveyed,  if  he  obtained  pos- 
session of  it  under  his  deed,  and  the  right  by  virtue  of  it  to  have 
the  mistake  corrected.*  But  it  is  a  good  defence  that  the  pur- 
chaser's grantor  had  no  title  to  the  property  ;  and  that  he  assumed 
the  payment  of  the  mortgage  through  the  false  and  fraudulent 
representations  of  his  grantor.^ 

755.  The  ground  upon  which  a  mortgagee  is  allowed  to 
take  advantage  directly  of  the  usual  clause  in  a  deed,  whereby 
the  grantee  assumes  the  payment  of  the  mortgage,  is  generally 
stated  to  be  that  as  between  the  parties  to  the  deed,  the  grantee 
thereby  becomes  the  principal  debtor  for  the  mortg;ige  debt, 
which  has  been  allowed  to  him  out  of  the  purchase  money,  and 
the  grantor  is  thenceforward  merely  a  surety  for  the  debt ;  and 
then,  upon  the  familiar  principle  that  the  creditor  is  enabled  by 

1  Crawford  v.  Edwards,  33  Mich,  354  ;  9  Paige  (N.  Y.),  435  ;  King  v.  Wliitely, 
Trotter  v.  Hughes,  12  N.  Y.  78;  Iluyier  10  lb.  465;  Halsey  v.  Reed,  9  lb.  451  ; 
V.  Atwood,  26  N.  J.  Eq.  504;  Finley  v.  Burr  v.  Beers,  24  N.  Y.  178;  Converse  v. 
Simpson,  2  Zab.  (N.  J.)  311.  Cook,  8  Vt.  164. 

2  Hofl's  Appeal,  24  Pa.  St.  200 ;  Len-  3  Vrooman  v.  Turner,  8    Ilun  (N.  Y.), 
nig's  Est.  52  Pa.   St.  138;    Crawford  v.  78;  Ballin  t" .  DiHaye,  37  N.  Y.  35. 
Edwards,   supra;    Biyer    v.   Monholhmd,  *  Crawford  i-.  Edwards,  33  Mich.  354; 
2    Sandf.   (N.   Y.)    Ch.   478 ;    Corbett   v.  Comstock  v.  Smith,  26  Mich.  306. 
Waterman,   11    Iowa,  87  ;    Thompson   v.  ^  Benedict  v.  Hunt,  32  Iowa,  27. 
Bertram,  14  Iowa,  476 ;  Curtis  r.  Tyler, 

581 


§  756.]  A  purchaser's  rights  and  liabilities. 

way  of  equitable  subrogation  to  all  securities  held  by  a  surety  of 
the  principal  debtor,  the  mortgagee  is  entitled  to  the  benefit  of 
this  agreement  made  by  the  purchaser,  although  he  did  not  know 
of  its  existence  till  long  afterwards.  In  different  forms  this  is  in 
substance  the  doctrine  of  the  cases.^ 

The  mortgagor  having  sold  the  property  and  taken  such  an 
agreement  has  become  thereby  a  surety  for  the  debt,  and  his 
creditor  is  entitled  to  the  benefit  of  all  collateral  obligations  he 
has  taken  for  his  indemnity .^ 

To  support  an  action  upon  this  ground,  therefore,  it  is  neces- 
sary in  the  first  place  that  the  grantor  in  whose  favor  the  stipu- 
lation is  made  should  himself  be  personally  liable  for  the  debt 
assumed  by  the  grantee ;  and  in  the  second  place,  that  there  be 
a  debt  or  some  obligation,  on  the  part  of  the  person  assuming 
the  payment  of  the  mortgage,  to  support  his  undertaking. 

Accordingl}^  if  the  grantor  be  not  the  mortgagor  himself,  or 
one  who  has  bound  himself  personally  for  the  payment  of  the 
mortgage  debt,  the  grantee,  in  assuming  the  payment  of  the 
mortgage,  does  not  become  personally  liable  through  the  grantor 
to  the  holder  of  the  mortgage  to  pay  the  debt  to  him.  There 
is  in  such  case  no  chance  for  any  equitable  subrogation,  and 
the  agreement  is  considered  as  a  mere  declaration  that  the  prop- 
erty was  conveyed  to  the  purchaser  subject  to  the  lien  of  the 
mortgage.^ 

756.  A  junior  mortgagee  not  personally  liable  on  his  agree- 
ment to  assume.  —  And  accordingly,  too,  when  such  an  agree- 
ment to  assume  the  payment  of  a  mortgage  is  contained  in  a 
mortgage,  it  does  not  as  a  general  rule  impose  any  personal  lia- 
bility upon  the  mortgagee  for  the  payment  of  the  prior  mortgage 
debt,  which  can  be  enforced  against  him  by  the  prior  mortgagee.^ 
The  subsequent  mortgagee  owes  no  money  for  the  land,  which  he 
can  promise  to  pay  to  the  prior  mortgagee,  for  he  does  not  ac- 
quire title  to  the  land.  Where  one  "  buys  land  absolutely  for  a 
stipulated  price,   and  instead  of  paying  the  whole  of  it  to  his 

1  Halsey  v.  Reed,  9  Paige  (N.  Y.),  446;  2  Crawford  v.  Edwards,  33  Mich.  354, 

Curtis  V.  Tyler,  9  lb.  432  ;  King  v.  White-  per  Mr.  Justice  Marston. 

ly,  10  lb.  465  ;  Marsh  v.  Pike,  10  lb.  597 ;  3  King  v.  Whitely,  10  Paige   (N.  Y.), 

Cornell  v.  Prescott,  2  Barb.  (N.  Y.)  16  ;  465,  overruled  in   Thorp  v.  Keokuk   Coal 

Kussell    V.   Pistor,    7   N.   Y.    171 ;    Trot-  Co.,  infra. 

ter  V.  Hughes,  12  N.  Y.  74.  *  Garnsey  v.  Rogers,  47  N.  Y.  233. 
,        582 


PERSONAL   LIABILITY    OF   PURCHASER.  [§  757. 

grantor,  he  is  allowed  to  retain  a  part,  which  he  agrees  to  pay  to 
a  creditor  of  a  grantor  having  a  lien  upon  the  land,  the  amount 
which  he  thus  agrees  to  pay  is  his  own  debt,  which  by  arrange- 
ment with  his  grantor  he  has  agreed  to  pay  to  the  creditor  of 
the  latter,  and,  although  this  arrangement,  not  being  assented  to 
by  the  creditor,  does  not  discharge  the  grantee  from  liability,  yet, 
as  between  him  and  the  party  who  has  assumed  it,  the  grantor 
is  a  mere  surety.  If  the  grantee  pays  it,  he  pays  only  what  he 
agreed  to  pay  for  the  land,  and  pays  it  in  the  manner  agreed 
upon.  And  there  is  no  hardship  in  allowing  either  the  grantor  or 
the  mortgagee  to  enforce  its  payment.  But  in  the  case  of  a 
party  having  the  land  merely  as  security,  such  an  undertaking 
is  simply  a  promise  to  advance  money  to  pay  the  debt  of  his 
grantor  or  mortgagor,  which  money  when  advanced  the  junior 
mortgagee  can  collect  under  his  mortgage."  ^ 

757.  When  the  assumption  is  made  in  an  absolute  deed, 
which  is  in  fact  a  mortgage.  —  The  fact  that  the  assumption  of 
the  prior  mortgage  is  made  on  a  conveyance  of  the  land  absolute 
in  form,  but  intended  as  a  mortgage,  does  not  change  the  rule.^ 
The  title  of  the  grantee  is  defeasible.  The  grantor  reserves  the 
right  to  annul  it  by  paying  the  debt,  and  when  he  does  so,  he  dis- 
charges the  agreement  to  pay  the  prior  mortgage.  "  The  reser- 
vation of  this  right  is  inconsistent  with  the  idea  that  the  assump- 
tion by  the  grantee  was  for  the  benefit  of  the  prior  mortgage  ; 
for,  if  it  were,  the  grantor  would  have  no  control  over  the  rights 
thus  acquired  by  a  third  party.  The  reservation  of  this  control 
by  the  grantor  shows  that  the  agreement  was  for  his  benefit  only, 
and  prevents  its  enuring  to  the  benefit  of  any  third  party."  ^ 

But  a  grantee  was  held  liable  to  the  mortgagee  on  his  covenants 
to  assume  and  pay  the  mortgage,  where  he  had  taken  an  absolute 
conveyance  at  the  request  of  another  and  for  his  benefit,  except 
80  far  as  the  profits  of  the  land  were  to  be  security  for  a  debt 
owed  him  by  the  person  for  whom  he  took  the  conveyance.  The 
deed  in  this  case  was  executed  with  the  name  of  the  grantee  left 
blank.  The  purchaser,  by  agreement  with  one  to  whom  he  was 
indebted,  inserted  his  debtor's  name  as  grantee  in  the  deed,  with 

1  Mr.  Justice  Rapallo,  in  Garnscy  v.  3  Per  Rapallo,  J.,in  Garnsey  r.  Rogers, 
Rogers,  supra.  supra. 

2  Garnsey  v.  Rogers,  47  N.  Y.  233. 

583 


§§  758,  759.]     A  purchaser's  rights  and  liabilities. 

the  understanding  that  the  profits  should  be  appHed  on  account  of 
the  debt.  In  a  suit  against  the  grantee  for  a  deficiency  after  a 
foreclosure  of  the  mortgage,  it  was  held  the  grantee  was  the  abso- 
lute owner  in  fee  of  the  premises ;  that  the  rights  of  the  parties 
were  to  be  determined  by  the  facts  existing  when  he  consented  to 
take  the  deed  with  a  covenant  to  pay  the  mortgage,  and  that  he 
was  liable  upon  the  covenants. ^ 

758.  Doctrine  that  the  mortgagee  may  maintain  the  action 
upon  the  ground  of  a  promise  for  his  benefit.  —  The  later  cases 
in  New  York,  however,  place  the  liability  of  the  grantee  in  such 
case  upon  the  broad  doctrine,  that  when  one  person  makes  a 
promise  to  the  benefit  of  a  third  person,  the  latter  may  maintain 
an  action  upon  it.^  It  is  not  needful  that  any  consideration  should 
pass  from  such  third  person,  or  that  he  should  know  of  it  at  the 
time.  It  is  sufficient  tliat  the  promise  be  made  upon  a  sufiicient 
consideration  passing  to  the  grantee,  who  assumes  the  mortgage 
from  his  grantor,  and  the  mortgagee,  in  adopting  the  act  of  the 
latter  for  his  benefit,  is  brought  into  privity  with  the  promisor, 
and  may  enforce  the  promise,  as  if  it  were  made  directly  to  liim.^ 

759.  Under  this  rule  the  mortgagee  need  not  resort  to  a 
foreclosure  suit  in  the  first  instance,  but  may  sue  the  grantee 
personally  on  his  undertaking  to  pay  the  debt ;  and  he  may  do  this 
even  when  the  mortgage  bond  provides  that  recourse  shall  first  be 
had  to  the  land,  and  then  only  to  the  obligor  for  the  deficiency.^ 

In  the  case  of  Thorp  v.  Keokuk  Coal  Co.,  the  bonds  accom- 
panying the  mortgage  contained  a  condition  that,  in  case  of  de- 


1  Campbell  v.  Smith,  8  Hun  (N.  Y.),  6;  and  the  doctrine  of  equitable  subrogation 
following  Lawrence  v.  Fox,  20  N.  Y.  268.  could  be  invoked  only  in  equity,  it  became 

2  Burr  u.  Beers,  24  N.  Y.  178.  This  necessary  to  determine  whether  the  action 
was  an  action  at  law  upon  the  grantee's  could  be  maintained  directly  upon  the 
undertaking,  without  a  foreclosure  of  the  grantee's  promise  in  law;  and  it  was  de- 
mortgage  and  without  making  the  mort-  cided  that  it  could  be. 

gagor  a  party.     Mr.  Justice  Denio  agrees  ^  Thorp  v.  Keokuk  Coal  Co.  48  N.  Y. 

that  the  previous  cases  proceed  upon  the  253  ;  Lawrence   v.   Fox,   20   N.    Y.    268. 

principle  that  the  undertaking  of  the  gran-  Followed   by  Campbell   v.  Smith,  8   Hun 

tee  to  pay  off  the  incumbrance  is  a  collat-  (N.  Y.),  6. 

eral  security,  acquired  by  the  mortgagor,  *  Thorp  v.   Keokuk  Coal  Co.  48  N.  Y. 

which  enures  by  an  equitable  subrogation  2.53  ;  S.  C.  47  Barb.  439  ;  overruling  King 

to  the  benefit  of  the  mortgagee ;  but  since  v.   Whitely,   10  Paige,  465;  S.   C.  HoflF. 

the  case  before  the  court  was  a  suit  at  law,  Ch.  477. 

58.4 


PERSONAL   LIABILITY    OF   PURCHASER.      [§§  760,  761. 

fault,  recourse  must  first  be  had  to  the  hinds  mortgaged,  and  that 
the  obhgors  would  only  be  answerable  for  the  deficiency. ^  The 
mortgage  had  not  been  foreclosed,  and  of  course  the  obligors  were 
not  liable  before  foreclosure  ;  but  it  was  decided  that  the  grantee, 
having  made  the  agreement  for  a  sufficient  consideration  passing 
from  his  grantor,  was  liable  upon  that  to  the  mortgagee  absolutely, 
and  not  upon  the  condition  contained  in  the  bonds  that  resort 
should  first  be  had  to  the  land  by  foreclosure  of  the  mortgage. 
"It  matters  not,"  said  Mr.  Commissioner  Earl,  "that  the  mort- 
gagor was  not  liable  to  pay  personally  until  after  foreclosure,  and 
that  he  was  then  liable  only  for  the  deficiency.  It  would  have 
made  no  difference  if  he  had  not  been  liable  at  all,  the  defendant 
having  promised,  upon  a  sufficient  consideration,  to  pay  the  debt. 
This  suit  is  not  primaril}'^  upon  the  bond  and  mortgage,  but  upon 
the  promise  of  the  defendant  to  pay  it ;  and  this  promise  binds 
the  defendant  to  pay  the  mortgage  debt  as  it  falls  due,  according 
to  the  terms  of  the  bond  and  mortgage.  It  was  not  a  conditional 
or  contingent  promise,  and  could  not  be  discharged  by  payment 
only  of  a  portion  of  the  debt." 

760.  Under  this  rule  it  is  not  necessary  that  the  grantor 
should  be  personally  liable  upon  a  mortgage  which  his  grantee 
has  assumed  the  payment  of,  in  order  to  render  the  grantee  liable 
upon  his  covenant  to  the  holder  of  the  mortgage  assumed  ;  thus, 
such  a  covenant  made  by  one  to  whom  the  premises  are  conveyed, 
after  several  conveyances  have  intervened  since  the  conveyance 
by  the  mortgagor,  may  be  enforced  by  the  holder  of  the  mortgage, 
although  the  grantor  in  whose  deed  the  payment  was  assumed 
had  not  assumed  the  payment  of  the  mortgage  debt,  or  made  him- 
seK  personally  liable  for  it  in  any  way.^ 

761.  The   promise  must   be    express.  —  The  doctrine  estab- 

1  48  N.  Y.  253.  The  clause  in  the  deed  observed  that  the  decision  would  have  been 
was  :  "  This  conveyance  being  made  subject  more  satisfactory  had  it  been  placed  upon 
to  a  certain  mortgage,  &c.,  the  payment  of  the  ground  that  the  defendant  had  not  as- 
which  said  mortgage,  &c.,  is  hereby  as-  sumed  the  payment  of  the  mortgage,  and 
sumed  by  the  i)arty  of  the  second  part  had  not  become  liable  to  pay  it  in  any 
hereto."  way  ;  but  that  whatever  may  be  said  about 

2  Vrooman  v.  Turner,  8  Hun   (N.   Y.),  it,  it  cannot  be  considered  authority  since 
78.   Mr.  Justice  Dyknian,  referring  to  the  the  case  of  Burr  v.  Beers,  24  N.  Y.  178. 
case  of  Trotter  v.  Hughes,  12  N.   Y.   74, 

585 


762.] 


A   PURCHASER  S   RIGHTS    AND    LIABILITIES. 


lislied  in  New  York  that  a  promise  by  one  person  made  to  an- 
other for  the  benefit  of  a  third  may  be  enforced  by  the  latter, 
although  he  was  not  privy  to  the  transaction,  must  be  limited,  it 
would  seem,  to  cases  in  which  the  promise  is  expressly  stated  to 
be  for  his  benefit,  or  in  which  he  has  received  money  or  property 
out  of  which  to  pay  the  obligation  assumed :  for  it  has  been  held 
by  the  Court  of  Appeals  in  that  state  that  an  agreement  by  one 
partner  with  another  to  pay  the  debts  of  the  firm  cannot  be  en- 
forced by  a  firm  creditor ;  because  the  agreement  was  not  for 
their  benefit,  but  to  exonerate  the  partner  from  his  liability.^ 


762.  This  doctrine  of  the  New  York  courts  is  not  adopted 
elsewhere,  but  is  criticised  by  other  courts  in  its  application  to 
the  subject  of  mortgages,  or  to  any  but  simple  contracts.  Thus,  in 
a  recent  case  in  New  Jersey  ^  the  ordinary  chancery  doctrine,  that 

1  Merrill  r.  Green,  55  N.  Y.  270.  on  the  contract.     The  rule  is  sometimes 

2  Crowell  V.  Currier,  27  N.  J.  Eq.  152.  thus  expressed:  There  must  be  a  privity 
The  same  question  was  before  the  Su-  of  contract  between  the  plaintiff  and  de- 
fendant, in  order  to  render  the  defendant 
liable  to  an  action  by  the  plaintiff  on  the 
contract."  The  learned  judge  then  ex- 
amines three  classes  of  cases  which  are  ex- 
ceptions to  this  rule ;  but  the  case  under 
consideration  did  not  come  in  either  class. 

The  same  rule  is  recognized  in  the  re- 


preme  court  in  Massachusetts,  in  Mellen 
u.  Whipple,  1  Gray,  317,  where  it  was  held 
that  no  action  at  law  by  the  mortgagee 
lies  upon  the  promise  of  a  purchaser  to 
assume  and  pay  the  mortgage.  Mr.  Jus- 
tice Metcalf  said :  "  The  counsel  for  the 
plaintiff,  in  his  brief  puts  the  case  upon 
this  ground:    'On  a  promise  not  under    cent  cases  of  Pettee  v.  Peppard,  120  Mass. 


seal,  made  by  A.  to  B.,  for  a  good  consid- 
eration, to  pay  B.'s  debt  to  C,  C.  may  sue 
A.'  Lord  Holt,  in  Yard  v.  Eland,  1  Ld. 
Raym.368,  and  Buller,  J.,  in  Marchington 
V.  Vernon,  1  Bos.  &  Pul.  101,  note,  used 
nearly  the  same  language  ;  and  it  has  been 


522  ;  Exchange  Bank  v.  Rice,  107   Mass. 
37,41. 

It  is  a  general  principle  that  when  one 
person,  for  a  valuable  consideration,  en- 
gages with  another  by  simple  contract  to 
do  some  act  for  the  benefit  of  a  third,  the 


transferred  into  various  text  books,  as  if    latter,  who  would  enjoy  the  benefit  of  the 


it  were  a  general  rule  of  law.  But  it  is 
no  more  true,  as  a  general  rule,  than  an- 
other maxim,  often  found  in  the  books, 
to  wit,  that  a  moral  obligation  is  a  suffi- 
cient consideration  to  support  an  express 
promise.  Both  maxims  require  great 
modification  ;  because  each  expresses 
rather  an  exception  to  a  general  rule  than 
the  rule  itself.  ....  The  general  rule  is 
and  always  has  been  that  a  plaintiff,  in  an 
action  on  a  simple  contract,  must  be  the 
person  from  whom  the  consideration  of 
the  contract  actually  moved,  and  that  a 
stranger  to  the  consideration  cannot  sue 

586 


act,  may  maintain  an  action  for  the  breach 
of  such  engagement.  It  does  not  rest 
upon  the  ground  of  any  actual  or  supposed 
relationship  between  the  parties,  or  upon 
any  implied  agency,  but  upon  the  broad 
basis  that  the  law,  operating  upon  the  act 
of  the  parties,  creates  the  duty,  establishes 
the  privity,  and  implies  the  promise  and 
obligation,  on  which  the  action  is  founded. 
Per  Bigelow,  J.,  in  Brewer  v.  Dyer,  7 
Cush.  (Mass.)  337  ;  and  see  Carnegie  v. 
Morrison,  2  Met.  (Mass.)  381,  per  Shaw, 
C.  J.,  and  cases  cited  there. 


PERSONAL   LIABILITY    OF    PURCHASER.  [§  762. 

the  covenant  of  a  purchaser  who  assumes  the  payment  of  an  exist- 
ing mortgage  is  a  collateral  security  obtained  by  the  mortgagor, 
which  enures  by  way  of  equitable  subrogation  to  the  benefit  of  the 
mortgagee,  is  asserted.  It  is  declared  that  the  mortgagee's  right 
does  not  rest  on  the  theory  of  a  contract  between  him  and  the 
purchaser  ;  that  no  action  at  law  can  be  maintained  to  assert  this 
right ;  but  that  the  remedy  is  purely  equitable.^  Referring  to  the 
case  of  Burr  v.  Beers^  where  it  was  held  that  a  mortgagee  may 
maintain  an  action  at  law,  before  foreclosure,  on  such  covenant, 
upon  the  broad  principle  that  a  promise  by  one  person  to  another, 
for  the  benefit  of  a  third,  may  be  enforced  directly  by  the  latter, 
Vice-Chancellor  Van  Fleet  said :  "This  principle,  in  its  applica- 
tion to  simple  contracts,  has  given  rise  to  a  great  contrariety  of 
judicial  opinion.  So  far  as  it  applies  to  simple  contracts,  it  must 
be  regarded  as  settled,  in  this  state,  for  the  present.^  But  it  has 
never  been  understood  to  apply  to  contracts  under  seal.  And 
Burr  V.  Beers  is,  so  far  as  I  know,  the  first  attempt  in  that  direc- 
tion. The  rule  that  an  action  at  law  for  breach  of  a  contract 
under  seal  can  only  be  brought  in  the  name  of  a  party  to  the  in- 
strument, and  that  a  third  person,  who  is  not  a  party  to  it,  cannot 
sue  on  it,  though  it  appears  to  have  been  made  expressly  for  his 
advantage,  is  so  ancient,  and  has  been  so  generally  adhered  to, 
that  it  must  be  regarded  as  axiomatic,  and  beyond  the  power  of 
the  courts  to  alter  or  destroy.*  The  legal  nature  of  contracts  of 
assumption,  when  expressed  in  deeds,  is  no  longer  open  to  dispute 
in  this  state.  They  have  been  declared  to  be  valid  covenants,  for 
breach  of  which  an  action  of  covenant  may  be  maintained.^  So 
completely  is  the  assumption  of  the  purchaser  regarded  as  a  con- 
tract with  the  grantor  alone,  that  unless  the  grantor  is  personally 
liable  for  the  mortgage  debt,  the  promise  of  the  purchaser  is  held 
to  be  a  nudum  pactum^  and  of  course  without  efficacy  in  favor  of 
either  grantor  or  mortgagee.^  It  would  seem  to  be  clear,  then, 
that  in  ordinary  cases  the  mortgagee  does  not,  by  force  of  the  con- 
tract, acquire  a  right  of  action  against  the  purchaser,  but  the 
benefit  fiowing  to  him  from  the  contract  is  limited  to  a  right  to 

1  Klapworth  v.  Dressier,  2  Beas.  (N.    Johnson  u.  Foster,  12  Met.  167;  Mellen  u. 
J.)  62.  Whipple,  1  Gray,  317;    Millard  v.  Bald- 

2  24  N.  Y.  178.  win,  3  Gray,  486. 

8  Joslin   V.   N.  J.   Car   Spring   Co.   7        ^  Finley  v.  Simpson,  2  Zab.  (N.  J.)  311. 
Vroom  (N.  J.),  146.  6  Ring    v.   Whitely,    10    Paige,    465; 

4  1  Chitty  on  Contr.  (11th  Am.  cd.)  77  ;     Trotter  v.  Hughes,  12  N.  Y.  74. 

587 


§  763.]  A  purchaser's  rights  and  liabilities. 

be  subrogated  to  the  rights  of  his  debtor.  He  stands  in  his  debt- 
or's rights,  and  may  appropriate,  to  the  satisfaction  of  his  mort- 
gage, any  security  held  by  his  debtor,  for  its  payment ;  he  can, 
therefore, only  have  a  personal  judgment  against  the  purchaser  for 
his  debt,  when  the  mortgagor  holds  an  obligation  which  will  sup- 
port such  judgment.  His  right  is  simply  the  right  of  substitu- 
tion, permitting  a  new  creditor  to  take  the  place  of  an  old  one, 
and  allowing  the  new  to  succeed  to  the  rights  of  the  old  one.  The 
adoption  of  the  other  view  would  lead  to  the  establishment  of 
this  anomalous  and  unjust  principle,  that  a  person  shall  have  a 
right  of  action  on  a  contract  to  which  he  is  not  a  party,  but  a 
stranger,  which  was  not  made  for  his  benefit,  for  which  he  gave 
no  consideration,  and  which  never  influenced  his  conduct  in  the 
slightest  degree." 

763.  Whether  the  grantor  can  deprive  the  mortgagee  of  the 
benefit  of  a  covenant  made  by  the  grantee  who  has  assumed  the 
payment  of  the  mortgage  does  not  seem  to  be  decisively  settled. 
On  the  one  hand,  in  G-arnsey  v.  Hogers,^  in  which  case  the  Court 
of  Appeals  of  New  York  distinguished  between  a  covenant  by  a 
grantee  in  an  absolute  deed  to  assume  a  mortgage,  and  one 
made  by  a  subsequent  mortgagee  to  assume  a  prior  mortgage, 
holding  that  the  latter  does  not  thereby  make  himself  personally 
liable  for  such  debt  to  the  prior  mortgagee,  Mr.  Justice  Rapallo, 
in  stating  the  grounds  of  this  distinction,  said :  "  It  must  be  con- 
sidered that,  where  such  an  assumption  is  made  on  an  absolute 
conveyance  of  land,  it  is  unconditional  and  irrevocable.  The 
grantor  cannot  retract  his  conveyance,  or  the  grantee  his  promise 
or  undertaking ;  but,  where  contained  in  a  mortgage,  the  convey- 
ance is  defeasible.  The  grantor  reserves  the  right  to  annul  it  by 
paying  his  debt,  and  when  he  does  so,  he  discharges  the  agreement 
to  pay  the  prior  mortgage.  The  reservation  of  this  right  is  incon- 
sistent with  the  idea  that  the  assumption  by  the  grantee  was  for 
the  benefit  of  the  prior  mortgagee  ;  for  if  it  were,  the  grantor 
would  have  no  control  over  the  rights  thus  acquired  by  a  third 
party.  The  reservation  of  this  control  by  the  grantor  shows  that 
the  agreement  was  for  his  benefit  only,  and  prevents  its  enuring 
to  the  benefit  of  any  third  party."  ^ 

1  47  N.  Y.  233,  242.  2  ggg^  also,  a  dictum  to  same  effect  in 

Hartley  v.  Harrison,  24  N.  Y.  170. 

688 


PERSONAL   LIABILITY   OF   PURCHASER.  [§  764. 

This  doctrine  is  supported  by  the  decision  in  Simson  v.  Broion^ 
in  the  Supreme  Court  of  New  York.  That  was  an  action  upon  a 
bond  given  to  a  mortgagor  conditioned  to  pay  to  the  holder  of  a 
mortgage  the  full  amount  of  it,  and  to  save  the  mortgagor  harm- 
less therefrom,  and  the  payment  was  guaranteed  by  another  per- 
son. The  mortgagor  was  not  personally  liable  for  the  payment  of 
the  mortgage  debt,  although  the  principal  in  the  bond  was  so  lia- 
ble to  the  holder  of  the  mortgage.  The  mortgagor  who  took  the 
bond  afterwards  executed  and  delivered  to  the  principal  obligor  in 
the  bond  a  satisfaction  of  the  bond,  which,  however,  he  did  not 
deliver  up  or  cancel,  but  afterwards  assigned  to  the  holder  of  the 
mortgage.  In  a  suit  by  the  latter  against  the  guarantor  of  the 
bond,  it  was  held  that  he  was  entitled  to  recover ;  that  the  mort- 
gagor did  not  by  his  release  discharge  the  bond  as  against  the 
holder  of  the  mortgage. 

It  may  be  remarked  of  this  case,  that  the  bond  was  in  form  an 
obligation  to  pay  the  debt  to  the  holder  of  the  mortgage,  and  to 
indemnify  the  mortgagor  as  well.  The  mortgagor  not  being  liable 
for  the  debt,  his  release  did  not  harm  him,  and  was  a  satisfaction 
of  his  interest  in  the  obligation  ;  but  the  principal  obligor  was 
directly  responsible  to  the  holder  of  the  mortgage  aside  from  the 
bond,  and  the  bond  was  to  pay  the  debt.  The  holder  of  the 
mortgage  was  interested  in  compelling  payment  of  the  bond,  and 
not  having  himself  released  the  parties  bound  by  it,  he  had  a 
right  to  maintain  his  action  unimpaired  by  the  act  of  the  mort- 
gagor. 

764.  When  the  grantor  may  release  the  grantee.  —  In  a 
later  case,  however,  before  the  same  court,  it  appeared  that  the 
grantee,  who  in  a  deed  from  the  mortgagor  had  assumed  the 
mortgage,  had  entered  under  his  deed,  and  made  jjayments 
upon  the  mortgaged  land,  but  that  he  afterwards  conveyed  the 
premises  to  a  brother  of  the  mortgagor  in  consideration  of  receiv- 
ing a  release  under  seal,  executed  by  the  latter,  from  all  lia- 
bility on  the  bond  and  mortgage,  and  from  all  obligation  assumed 
by  him  in  the  purchase  of  the  premises,  the  mortgagor  agreeing 
to  pay  any  deficiency  which  might  arise  upon  foreclosure.  In  a 
suit  by  the  mortgagee  against  the  grantee  to  compel  payment  of 
the  debt,  on  the  ground  of  his  contract  or  covenant  to  pay  it,  it 

1  6  Hun  (N.  y.),  251. 

589 


§§  765,  766.]     A  purchaser's  rights  and  liabilities. 

was  held  that  the  release  operated  to  discharge  the  grantee  from 
all  obligations  assumed  by  him  under  the  deed.^ 

It  would  seem  that  unless  the  holder  of  the  mortgage  purchased 
it,  relying  upon  the  covenant  as  part  of  his  security,  or  has  since 
been  influenced  by  it  in  his  dealing  with  the  mortgage,  and  has  no 
equity  except  that  flowing  through  the  mortgagor,  but  simply  the 
rights  of  the  mortgagor,  he  has  no  rights  at  all  against  the  pur- 
chaser after  the  mortgagor  has  voluntarily  released  him  from  all 
liability  under  his  covenant. 

765.  Conveyance  on  condition  that  the  grantee  pay  a  mort- 
gage.—  A  conveyance  "subject  to"  certain  mortgages,  "to  be 
assumed  and  paid  by  the  grantee,  his  heirs  and  assigns,  the 
same  making  part  of  the  consideration,"  and  "  on  condition " 
that  the  grantor  and  his  representatives  shall  be  forever  indemni- 
fied and  saved  harmless  from  the  payment  of  them,  is  a  grant  on 
condition,  and  forfeited  by  a  breach  thereof,  and  not  in  the  nature 
of  a  mortgage  from  the  grantee  to  the  grantor,  with  a  right  of 
redemption  for  three  years  after  such  breach.  Such  condition  is 
not  extinguished  by  the  grantor's  taking  back  a  mortgage  for  a 
part  of  the  consideration  subject  to  the  mortgages  assumed,  with 
covenants  to  save  the  grantor  harmless  against  them,  and  his 
entry  upon  the  land  for  breach  of  the  condition  of  the  deed  is 
not  afliected  by  an  assignment  of  the  mortgage  before  or  after 
such  entry  .2  But  any  entry  in  such  case  made  for -the  purpose  of 
foreclosure  will  not  serve  as  an  entry  for  foreclosure  under  the 
condition  in  the  deed  until  some  further  notice  be  given  or  act 
done  for  that  purpose.^ 

In  such  case  if  the  grantee  fail  to  perform  the  condition,  the 
grantor  is  not  confined  to  a  forefeiture  as  his  only  remedy,  but  he 
may  maintain  an  action  against  the  grantee  upon  his  implied 
promise  to  pay  the  mortgage,  and  recover  any  payments  he  has 
made.  The  grantor  may  enter  for  breach  of  the  condition,  but 
he  may  have  an  action  upon  the  promise  as  well.^ 

766.  Grantor's    agreement    to    discharge    a    mortgage. — 

1    Stephens   v.   Casbacker,  8    Hun    (N.         ^  Stone  v.  Ellis,  9  Cush.  (Mass.)  95. 
Y.),  116.  4  Pike  V.  Brown,  7  Cush.  (Mass.)  133. 

^  Hancock  v.  Carlton,  6  Gray  (Mass.), 
39. 

590 


PERSONAL   LIABILITY   OF   PURCHASER.      [§§  767,  768. 

Where  a  grantor  of  land,  subject  to  a  second  mortgage,  gives 
the  purchaser  a  bond  conditioned  to  save  him  harmless  from  it, 
and  to  cause  it  to  be  assigned  to  him  within  six  months,  a  failure 
to  do  this  entitles  the  purchaser,  even  after  the  foreclosure  of  the 
first  mortgage,  to  recover  damages  to  the  amount  of  the  differ- 
ence between  the  value  of  the  estate  and  the  amount  due  on  the 
first  mortgage,  if  the  value  of  the  property  is  less  than  the  amount 
of  the  two  mortgages.^ 

The  general  covenants  in  a  grantor's  deed  bind  him  to  discharge 
an  existing  mortgage,  unless  there  be  some  provision  to  the  con- 
trary. In  equity  this  covenant  may  be  released  without  a  tech- 
nical release,  by  matters  in  pais  ;  as  for  instance  by  a  subsequent 
transaction  between  the  parties  in  which  the  purchaser  agrees  to 
assume  and  pay  this  mortgage.^ 

767.  When  a  purchaser  is  entitled  to  a  release.  —  A  pur- 
chaser of  a  portion  of  the  premises  covered  by  a  mortgage  dul}'' 
recorded  is  not  entitled  to  a  release  of  that  portion  by  reason  that 
he  has  given  to  the  mortgagor  his  promissory  note  for  the  whole 
value  of  that  portion,  and  the  mortgagor  has  transferred  the  note 
to  the  mortgage  (Creditor  to  be  applied  in  reduction  of  the  mort- 
gage debt.  Neither  does  the  payment  of  such  note  give  him  this 
right,  unless  the  holder  of  the  mortgage  has  agreed  to  release.^ 
The  mortgage  covers  the  whole  property,  and  secures  the  whole 
debt ;  and  the  holder  of  it,  aside  from  any  agreement,  is  under  no 
obligation  to  release  any  part  of  the  property  upon  payment  of  a 
part  of  the  debt. 

768.  The  remedy  of  the  grantor.  —  If  a  purchaser  who  has 
assumed  a  mortgage  debt  omit  to  pay  it  when  due,  the  seller  may 
take  an  assignment  of  the  mortgage  to  himself,  and  foreclose  the 
same,  or  sue  on  the  agreement  and  recover  the  amount  paid  by 
him  in  obtaining  the  mortgage,  not  exceeding  the  amount  unpaid 
on  such  mortgage.  In  such  an  action,  written  receipts  indorsed 
on  the  mortgage  by  the  mortgagee  are  competent  evidence  to 
show  payments  thereon.  The  plaintiff  in  such  action  can  only  re- 
cover the  amount  paid  by  him.'* 

1  Coombs  V.  Jenkins,  16  Gray  (Mass.),         ^  Colby  i-.  Cato,  47  Ala.  247. 

153.  ■»  Mills  V.  Watson,   1   Sweeny   (N.  Y.), 

2  Drury  v.  Trcmont  Improvement  Co.    374. 

13  Allen  (Mass.),  168.  591 


§  769.]  A  purchaser's  rights  and  liabilities. 

After  the  premises  have  been  sold  to  one  who  has  agreed  to  pay 
off  the  mortgage,  the  mortgagor  may  himself  purchase  the  mort- 
gage and  foreclose  it.^ 

And  so  a  mortgagor,  who  has  sold  subject  to  the  mortgage 
debt,  upon  being  compelled  to  pay  it,  is  subrogated  to  the  benefit 
of  the  security,  without  any  formal  assignment  of  it  to  him.  He 
thereby  becomes  an  equitable  assignee  of  it  and  may  enforce  it 
against  the  property .^ 

The  purchaser,  by  assuming  the  payment  of  the  mortgage, 
makes  himself  personally  liable  both  to  the  mortgagee  and  to  the 
mortgagor.  Upon  a  default  the  mortgagor  may  immediately,  be- 
fore paying  the  mortgage,  proceed  against  him  upon  his  cove- 
nant.^ He  cannot  compel  the  mortgagee  to  foreclose  his  mortgage 
so  as  to  subject  the  land  to  the  payment  of  the  debt,  and  the 
purchaser  to  a  judgment  for  the  deficiency  ;  but  he  may  himself 
proceed  in  equity  to  compel  the  purchaser  to  pay  off  the  mortgage 
according  to  his  undertaking.'^ 

Under  codes  of  practice  allowing  an  equitable  suit  in  such  case, 
the  grantor  may  maintain  a  bill  to  have  the  mortgage  satisfied  out 
of  the  land.^ 

769.  A  contract  to  pay  a  mortgage  may  be  enforced 
before  the  promisee  has  paid  it.  —  A  provision  whereby  a 
grantee  "  assumes  and  agrees  to  pay  "  a  mortgage  is  a  contract 
not  merely  to  indemnify  the  grantor,  but  to  pay  the  debt  provided 
it  be  the  debt  of  the  grantor.  It  is  not  necessary,  therefore,  as 
ifc  is  in  case  of  an  agreement  purely  to  indemnify  the  grantor 
against  any  loss  or  damage  by  reason  of  the  mortgage,^  that  the 
grantor  should  show  that  he  has  been  in  some  measure  damnified 
before  he  can  recover  on  such  promise.'  "  There  is  no  reason," 
says  Mr.  Justice  Devens,  in  a  recent  case  before  the  Supreme 
Court  of  Massachusetts,  "  why  an  agreement  may  not  be  made 
which  shall  bind  the  party  so  contracting  to  pay  the  debt  which 

1  Mills  V.  Watson,  1  Sweeny  (N.  Y.),  374.         ^  Abell  v.  Coons,  7  Cal.  105. 

2  Kinnear  v.  Lowell,  34  Me.  299  ;  Baker  ^  Little  v.  Little,  13  Pick.  (Mass.)  426. 
w.  Terrell,  8  Minn.  195.  T  Purnas    v.   Durgin,    119    Mass.   500. 

3  Rubens  V.  Prindle,  44  Barb.  (N.  Y.),  See  Brewer  v.  Worthington,  10  Allen 
336;  Bowen  v.  Kurtz,  37  Iowa,  239.  (Mass.),   329.       Contra,    see  Burbank   v. 

*  Marsh  v.  Pike,  1  Sandf.   (N.  Y.)  Ch.     Gould,  15  Me.  118. 
210  ;  S.  C.  10  Paige,  595  ;  Cornell  v.  Pres- 
cott,  2  Barb.  (N.  Y.)  16. 

592 


PERSONAL   LIABILITY    OF    PURCHASER.  [§  770. 

another  owes,  and  thus  relieve  him  or  his  estate  from  it,  and,  if 
the  promise  thus  made  is  not  kept,  why  the  promisee  should 
not  recover  a  sum  sufficient  to  enable  him  to  do  so.  Such  is  the 
construction  to  be  given  to  the  agreement  in  the  case  before  us. 
As  a  consideration  for  the  property  conveyed  to  him,  the  plain- 
tiff conveyed  the  Hyde  Park  estate  to  the  defendant,  who  con- 
tracted not  to  indemnify  the  plaintiff  against,  but  to  pay  the 
mortgages  upon  it,  and,  if  he  has  failed  to  do  this,  the  plaintiff 
should  be  entitled  to  recover  the  amount  which  the  defendant  thus 
agreed  to  pay.  It  is  a  portion  of  the  consideration  money  due 
the  plaintiff,  which  he  was  to  receive  by  payment  of  a  debt  for 
which  he  was  liable,  which  he  thus  recovers,  when  the  defendant 
fails  to  perform  his  promise.  That  the  plaintiff  should  be  kept 
subject  to  a  debt  from  which  the  defendant  agreed  to  relieve  him 
is  a  continuing  injury,  for  which  a  sum  of  money?  which  will  ena- 
ble him  to  discharge  it,  is  an  appropriate  remed^^  in  damages."  ^ 
Such  a  promise,  moreover,  when  no  time  is  specified  for  the  pay- 
ment of  the  mortgage,  is  a  promise  to  pay  it  when  it  becomes  due, 
or  if  it  be  already  due  to  pay  it  forthwith.^ 

770.  The  measure  of  damages  in  an  action  by  the  grantor 
against  his  grantee  upon  his  promise  to  pay  a  mortgage  debt  is 
the  amount  of  the  debt  and  interest  remaining  due.  If  the  de- 
fendant should  pay  the  debt  at  any  time  before  final  judgment,  the 
damages  to  be  recovered  would  be  nominal  only.  Such  payment 
would  obviate  the  risk  that  otherwise  may  be  incurred,  that  the 
plaintiff  may  not  devote  the  sum  recovered  by  him  to  the  payment 
of  the  mortgage  debt,  and  that  the  defendant,  in  order  to  relieve 
his  property,  may  be  compelled  to  pay  the  amount  a  second  time. 
"  There  is  no  mode  at  law,"  says  Mr.  Justice  Devens,^  "by  which 
this  difficulty  can  be  avoided,  and  the  plaintiff  enabled  to  receive 
the  benefit  of  his  contract.  Perhaps  in  equity,  where  a  proper 
case  for  its  interference  was  shown,  a  remedy  would  be  afforded 
that  would  secure  the  party  paying  under  such  circumstances 
from  having  the  payment  made  by  him  devoted  to  any  other  ob- 

1  Furnas  v.Durgin,  s«/im.     Sec  author-  may  be  maintained   and  damages  recov- 

ities  there  cited  in  support  of  the  proposi-  ered  to  the  amount  of  such  debt, 

tion  that  a  promise  to  pay  a  debt  due  from  ^  Furnas  v.  Durgin,  supra. 

the  promisee,  even  where  it  has  not  been  ^  See  Furnas  v.  Durgin,  119  Mass.  500, 

paid  by  him,  is  one  upon  which  an  action  508. 

VOL.  I.                       38  593 


§  770.]  A  purchaser's  rights  and  liabilities. 

ject  than  that  which  would  relieve  him  or  his  estate  from  further 
responsibility.  However  this  may  be,  the  want  of  elasticity  in 
the  forms  of  the  common  law,  which  does  not  enable  us  to  make 
such  a  decree  here  as  would  guard  the  rights  of  all  parties,  should 
not  prevent  us  from  giving  to  the  plaintiff  the  benefit  of  the  con- 
tract which  he  has  made,  or  compel  him  to  remain  subject  to  the 
burden  of  the  debt  which  the  defendant  has  agreed  to  extin- 
guish." 

594 


CHAPTER  XVIII. 
A  lessee's  kights  and  liabilities. 

771.  The  mortgagor  while  in  possession  is  entitled  to  the 
rents.  —  So  long  as  the  mortgagor  is  allowed  to  remain  in  pos- 
session without  an  actual  entry  by  the  mortgagee,  although  there 
has  been  a  breach  of  the  condition  of  the  mortgage,  he  is  entitled 
to  receive  the  rents  and  profits  to  his  own  use,  and  is  not  liable 
to  account  for  them  to  the  mortgagor.^  If  the  premises  are  under 
lease,  the  right  of  the  mortgagor  in  possession  to  the  rents  is  the 
same,  whether  the  lease  was  made  before  or  after  the  mortgage  ; 
he  may  lawfully  receive  the  rents  until  the  mortgagee  interferes ; 
and  he  receives  them  to  his  own  absolute  use,  and  not  for  the 
use  of  the  mortgagee.^ 

In  those  states  in  which  the  mortgagee  is  prohibited  from 
taking  possession  previous  to  foreclosure,  the  mortgagor  may  make 
a  valid  and  binding  assignment  of  the  rents  and  profits  until  fore- 
closure and  sale.  Such  an  assignment  does  not  operate  as  a  fraud 
upon  the  mortgagee,  because  he  is  not  in  any  event  entitled  to 
the  rents  and  profits  before  such  time.  The  assignee  of  the  rents 
and  profits  may  enforce  his  right  to  them  by  an  action  in  the 
nature  of  a  foreclosure  suit.^  In  the  absence  of  a  specific  pledge 
of  the  rents  and  profits  to  the  mortgagee  as  part  of  his  secu- 
rity, the  mortgagor,  though  insolvent,  may,  until  the  foreclosure 
sale,  or  until  the  appointment  of  a  receiver  pending  the  foreclosure 
suit,  receive  them  to  his  own  use  or  assign  them  to  another.*  The 
foreclosure  sale  alone  does  not  divest  the  mortgagor  of  his  right  of 

1  Fitchburg  Manuf.  Cor.  v.  Mclven,  15  2  Trent  i'.  Hunt,  9   Exch.  14,  22,  per 

Mass.  268;  Gibson   v.  Farley,    16   Mass.  Alderson,  B.     See  §  670. 

280  ;  Boston  Bank  v.  Reed,  8  Pick.  (Mass.)  3  Dewey  v.  Latson,  6  Cal.  609. 

459;  Wilder  f.  Houghton,  1  lb.  89  ;  Mayo  *  Syracuse,   &c.   Bank  i'.    Tallman,  31 

f.  Fletcher,    14   lb.   525;    McKircher   v.  Barb.  (N.  Y.)  201.     See  §  669. 
Hawley,  16  Johns.  (N.  Y.)  289;  Clarke 
V.  Curtis,  1  Gratt.  (Va.)  289. 

595 


§§  772,  773.]     A  lessee's  rights  and  liabilities. 

possession  ;  lie  may  occupy  the  premises  or  receive  tlie  rents  of 
them  until  the  delivery  of  the  deed  to  the  purchaser.  A  lessee 
having  purchased  at  the  foreclosure  sale,  and  a  delay  of  several 
weeks  having  occurred  in  the  delivery  of  the  deed  to  him,  during 
which  a  quarter's  rent  became  due  under  the  lease,  he  was  held 
liable  in  an  action  by  the  mortgagor  for  such  rent.  Although  he 
made  a  tender  of  the  purchase  money  soon  after  the  sale,  it  was 
held  that  his  tender  did  not  operate  to  vest  in  him  the  legal  title ; 
nor  did  the  subsequent  delivery  of  the  deed  to  him  operate  by 
relation  to  vest  the  title  in  him  at  the  time  of  the  purchase,  or 
of  the  tender  of  the  purchase  money.  He  should  have  followed  up 
his  tender  by  a  motion  to  pay  the  money  into  court,  or  to  compel 
the  completion  of  the  sale,  whereupon  the  court  could  have  adjusted 
the  equities  of  all  the  parties,  and  made  the  loss  arising  from  the 
delay  fall  upon  the  party  whose  negligence  caused  it.  The  court 
might  have  ordered  the  tenant  to  attorn  to  the  purchaser,  and  the 
interest  on  the  mortgage  to  cease  from  the  day  of  tender.^ 

772.  A  mortgagee  has  no  specific  lien  upon  the  rents  and 
profits  of  the  mortgaged  land  unless,  he  has  in  the  mortgage 
stipulated  for  a  specific  pledge  of  them  as  part  of  his  security. 
He  has  no  claim  upon  them  until  he  has  the  right  to  take  pos- 
session of  the  premises  under  his  mortgage.  Until  the  mortgage 
debt  is  due  he  is  not  entitled  to  have  a  receiver  of  such  rents  ap- 
pointed.^  The  tenant  may  safely  continue  to  pay  rent  to  the 
mortgagor,  until  he  receives  notice  from  the  mortgagee  of  his  re- 
quirement that  the  rents  be  paid  to  him. 

Where  a  mortgagee  has  taken  a  lease  of  the  mortgaged  prem- 
ises from  the  mortgagor,  upon  a  subsequent  sale  of  the  equity  of 
redemption,  he  cannot  apply  the  rents  as  against  the  purchaser  in 
set-off  upon  the  mortgage  debt.^ 

773.  A  lease  already  existing  at  the  date  of  the  mort- 
gage is  in  no  way  invalidated  by  the  giving  of  the  mortgage.  It 
is  then  a  paramount  interest,  and  the  mortgage  is  subject  to  it. 
The  mortgagee  has  only  the  rights  of  the  mortgagor  as  against 
the  lessee.* 

1  Clason  V.  Corley,  5  Sandf.  (N.  Y.)  447.         3  Scott  v.  Fritz,  51  Pa.  St.  418. 

2  Bank   of   Ogdensburgh  v.  Arnold,    5         *  Hemphill  v.  Giles,  66  N.  C.  512. 
Paige  (N.  Y.),  38. 

696 


A  lessek's  rights  and  liabilities.  [§  774. 

The  mortgagor  may  of  course,  at  the  time  of  making  a  mort- 
gage of  the  reversion,  release  the  tenant  from  the  payment  of  the 
rents  accrued  at  that  time ;  but  otherwise  the  rent  then  accru- 
ing goes  with  the  reversion,  and  the  mortgagee  is  entitled  to  it 
if  he  gives  the  tenant  notice  before  the  rent  day.^ 

But  a  payment  of  rents  in  advance  is  not  binding  upon  a  mort- 
gagee of  the  reversion.  "  The  question  is,"  says  Mr.  Justice 
Willes,^  "  whether,  where  there  has  been  an  assignment  of  a  re- 
version, payment  of  rent  to  the  assignor  before  rent  day  takes 
away  the  rights  of  the  assignee  to  the  rent  so  completel}^  that  if 
he  should  give  notice  before  rent  day  of  the  assignment,  the  pay- 
ment would  still  be  good.  There  would  be  an  obvious  injustice 
in  that,  even  if  the  payment  were  made  before  the  assignment, 
because  a  person  who  bought  the  reversion  on  the  faith  that  the 
rent  was  becoming  due  would  be  defeated  by  a  transaction  be- 
tween the  landlord  and  tenant,  of  which  he  had  no  notice." 

774.  A  mortgage  of  premises  already  leased  is  an  assign- 
ment of  the  reversion.  —  It  is  a  clearly  established  rule  that  a 
mortgagee  upon  giving  notice  to  a  tenant  of  the  mortgaged  prem- 
ises, under  a  lease  for  years  given  prior  to  the  mortgage,  is  enti- 
tled to  all  rent  accruing  and  becoming  due  subsequent  to  the  ex- 
ecution of  the  mortgage,  as  well  that  in  arrear  at  the  time  of 
giving  notice,  as  that  which  accrues  afterwards. 

This  was  decided  in  the  time  of  Lord  Mansfield,  and  has  been 
a  recognized  principle  ever  since.^  The  mortgagee  becomes  enti- 
tled to  the  rent  without  any  attornment  by  the  tenant.  The  mere 
execution  of  the  mortgage  subsequent  to  the  lease  operates  as  an 
assignment  of  the  reversion,  and  carries  the  rent  as  incident  to  rt, 
and  the  mortgagee  is  entitled  upon  notice  to  the  tenant  to  receive 
the  rents  whenever  he  is  entitled  to  possession.  No  actual  entry 
by  him  is  necessary. 

Rent  accrued  prior  to  the  mortgage  does  not  pass  as  incident  to 

1  De  Nicholls  v.  Saunders,  L.  R.  5  C.  Smith's  Lead.  Cas.  310;  Ncwal 1 1'.  Wright, 
P.  589.  3  Mass.  138  ;  Fitchbmg  Cotton  Manuf.  Co. 

2  De  Nicholls  v.  Saunders,  L.  II.  5  C.  v.  Melven,  15  Mass.  268;  Burden  v. 
P.  589;  and  see  Cook  v.  Guerra,  7  lb.  132.  Thayer,  3  Met.  (Mass.)  79;  Russell  v.  AI- 

^  Rogers  v.  Humphreys,  4  Ad.  &  E.  len,  2  Allen  (Mass.),  42;  Mirick  y.  Hop- 
299  ;  Trent  v.  Hunt,  9  Exch.  14;  Moss  v.  pin,  118  Mass.  582  ;  Kimball  v.  Smith,  6 
Gallimore,  Doug.  279;  4  Kent  Com.  165  ;  1     R.  I.  138. 

597 


§§  775,  776.]     A  lessee's  eights  and  liabilities. 

the  reversion,  but  is  a  mere  chose  in  action  belonging  to  the  mort- 
gagor. But  rent  accruing  and  becoming  due  after  the  execution 
of  the  mortgage  does  pass  as  incident  to  the  reversion,  and  may 
be  recovered  of  the  lessee  after  notice  of  the  mortgage,  and  with- 
out an  actual  entry  by  the  mortgagee  upon  the  premises.  His 
right  does  not  extend  to  rents  already  due  when  the  mortgage  was 
executed,  or  to  rents  which  have  been  paid  to  the  mortgagor 
before  notice  to  the  lessee  of  the  mortgage.^ 

The  mortgagee  as  assignee  of  the  reversion  has  the  same  rights 
against  the  lessee  and  those  claiming  under  him  that  the  mort- 
gagor had,  and  no  other  than  he  had,  so  long  as  the  term  con- 
tinues, and  the  tenant  acknowledges  his  title.^ 

775.  To  entitle  the  mortgagee  to  the  rents  as  against  the 
mortgagor,  it  is  not  necessary  that  his  entry  should  be  effectual 
for  the  purpose  of  foreclosure,  but  any  possession  taken  by  him 
with  notice  to  the  tenants  to  pay  the  rent  to  him  is  sufficient.^ 
The  mortgagor  cannot  recover  for  rents  that  accrue  afterwards. 
To  an  action  by  him  on  the  covenants  of  the  lease,  the  entry  of 
the  mortgagee  and  the  promise  of  the  lessee  to  pay  to  him  are  a 
good  defence. 

Where  the  mortgagor  has  appointed  an  agent  to  receive  the 
rents  of  the  mortgaged  estate,  a  notice  to  him  by  the  mortgagee 
to  pay  the  rents  when  collected  to  himself  is  a  termination  of  the 
mortgagor's  tenancy  at  will,  and  the  agent  will  hold  the  rents 
subsequently  accruing  as  trustee  of  the  mortgagee.* 

776.  Lease  by  mortgagor  after  the  mortgage.  —  A  mort- 
gagor cannot  make  a  lease  of  the  mortgaged  premises  which  will 
be  binding  upon  the  mortgagee.^  Upon  a  breach  of  the  condition 
the  mortgagee  may  enter,  and  treat  the  lessee  as  a  trespasser  and 
without  notice  bring  ejectment.^  If  the  mortgagee  after  entry 
accepts  rent  from  such  lessee,  the  relation  of  landlord  and  tenant 
is  thereby  created,  but  this  tenancy  will  be  deemed  one  from  year 

1  Russell  V.  Allen,  2  Allen  (Mass.),  42  ;  *  Crosby  v.  Harlow,  21  Me.  499. 
Mirick  v.  Hoppin,  118  Mass.  582.  ^  McDermott  v.  Burke,  16  Cal.  580. 

2  Rogers   v.   Humphreys,  4  Ad.  &  El.  ^  Weaver  v.  Belcher,  3  East,  449 ;  Rog- 
299,  313,  per  Lord  Denman,  C.  J.  ers  v.  Humphreys,  4  Ad.  &   El.  299,  per 

8  Stone  V.  Patterson,  19  Pick.  (Mass.)     Lord  Denman. 
476  ;    Welch  v.   Adams,  1   Met.   (Mass.) 
494. 

598 


A  lessee's  rights  and  liabilities.  [§  777. 

to  year,  and  not  for  the  term  of  the  original  lease.^  The  mort- 
gagee can  no  longer  treat  the  lessee  as  a  trespasser.^ 

Whether  the  tenant  has  actual  notice  of  the  mortgage  or  not 
makes  no  difference  if  the  mortgage  be  recorded ;  it  is  then  con- 
structive notice,  and  affects  one  who  becomes  the  tenant  of  the 
mortgagor  as  much  as  it  affects  a  purchaser.  The  mortgagor  has 
no  implied  power  to  bind  the  mortgagee  by  lease .^ 

A  mortgagor's  lease  is,  however,  good  as  between  the  parties, 
by  virtue  of  the  contract,  and  upon  a  subsequent  discharge  of  the 
mortgage  the  defect  in  the  lessee's  title  is  removed.  But  the 
tenant  cannot  compel  the  mortgagor  to  pay  off  the  mortgage  in 
order  that  his  lease  may  be  perfected  ;  but  he  is  left  to  his  rem- 
edy at  law  for  damages.^  It  is  avoided  only  upon  the  interference 
of  the  mortgagee,  and  until  that  time  the  mortgagor  is  entitled  to 
receive  the  rent  to  his  own  use,  and  to  enforce  the  payment  of  it 
by  action  in  his  own  name.^ 

777.  Attornment  by  lessee  under  lease  made  after  the 
mortgage. — The  rights  and  liabilities  of  the  parties  are  very 
different  when  a  mortgagor  in  possession  makes  a  lease  for  years 
subsequent  to  the  execution  of  the  mortgage.  There  is  then  no 
privity  of  contract  between  the  mortgagee  and  lessee,  and  until 
actual  entry  by  the  mortgagee,  or  the  lessee  expressly  promises  to 
pay  rent  to  him,  he  can  maintain  no  action  against  the  lessee  to 
recover  it.^  He  cannot  by  mere  notice  compel  the  tenant  to  pay 
rent  to  him,  and  his  title  to  rent  does  not  accrue  until  he  has  ob- 
tained possession  of  the  mortgaged  estate ;  but  if  the  tenants  of 
the  mortgagor  pay  rent  to  the  mortgagee,  they  thereby  by  attorn- 
ment become  his  tenants,  and  entitle  him  from  that  time  to  receive 
the  rents.^ 

The  mortgagee  may  treat  a  lessee  holding  under  a  lease  from 
the  mortgagor  since  the  mortgage  as  a  trespasser,  and  eject  him  ; 
but  unless  the  tenant  has  attorned  to  him,  he  cannot  distrain  or 

1  Hughes  V.  Bucknell,  8  Car.  &  P.  566.  ^  Trent  v.   Hunt,  9  Exch.  14,  22,  per 

2  Birch  c.  Wright,  1  T.  R.  378.  Alderson,  B. 

3  Henshaw  v.  Wells,  9  Humph.  (Tcnn.)  «  Morsev.Goddard,  13  Met.  (Mass.)  177  ; 
568.  Field  y.  Swan,   10  lb.  112;    Mass.  Hosp. 

4  Costigan  v.  Hastier,  2  Sch.  &  Lef.  Life  Ins.  Co.  v.  Wilson,  10  lb.  126. 
160;  see  Howe  v.  Hunt,  31  Beav.  420  ;  '  Kimball  v.  Smith,  6  R.  I.  138. 
Carpenter  v.  Parker,  3  C.  B.  N.  S.  206. 

599 


§  778.]  A  lessee's  rights  and  liabilities. 

bring  an  action  for  rent,  as  there  is  no  relation  of  landlord  and 
tenant  between  them.^  A  mere  notice  by  the  mortgagee  to 
the  tenant  to  pay  the  rent  to  him,  to  which  the  tenant  does 
not  consent,  or  upon  which  he  does  not  act,  does  not  make 
the  tenant  liable  to  him  in  an  action  for  rent,  nor  does  a  request 
by  the  mortgagor  that  he  will  pay  to  the  mortgagee  have  this 
e£fect.2 

If  the  tenants  under  such  a  lease  attorn  to  the  mortgagee  after 
a  breach  of  the  condition  which  gives  him  the  right  of  entry,  they 
thereby  become  his  tenants  and  debar  the  mortgagor  from  recov- 
ering from  them. 3  The  mortgagee,  as  between  him  and  the  mort- 
gagor, has  then  the  right  to  enter  and  take  possession  of  the  prem- 
ises ;  and  if  the  tenant  yields  up  possession  to  the  mortgagee,  he 
does  voluntarily  what  the  law  will  compel  him  to  do.  By  attorn- 
ment he  does  not  injure  the  mortgagor,  and  he  saves  himself  the 
costs  of  an  eviction  by  the  mortgagee.  His  attornment  is  a  good 
defence  to  an  action  by  the  mortgagor  for  the  rent.^ 

It  is  no  answer  to  a  claim  for  rent  by  a  second  mortgagee  who 
has  entered  that  there  is  a  prior  mortgage,  under  which  no  entry 
has  been  made.^ 

778.  But  in  a  state  where  a  mortgage  is  regarded  as 
conveying  no  title  to  the  mortgagee,  and  the  right  of  posses- 
sion until  foreclosure  and  sale  is  assured  to  the  mortgagor  by 
statute,  it  has  been  held  that  there  is  nothing  to  rest  an  attorn- 
ment upon,  and  that  this  doctrine  has  no  application.  The  ver- 
bal agreement  of  the  tenant  to  pay  rent  to  the  mortgagee  does 
not  continue  the  existing  tenancy,  simply  putting  the  mortgagee 

1  Rogers  v.  Humphreys,  4  Ad.  &  El.  735 ;  Coker  v.  Pearsall,  6  Ala.  542 ; 
299,  313,  per  Lord  Denman,  C.  J.  Branch  Bank  v.  Fry,  23  Ala.  770 

2  Evans  v.  Elliott,  9  A.  &  E.  342.  ^  Kimball   v.  Lockwood,  6  E.  L  138; 
In  Alabama  it  is  provided  that  every     Hemphill  v.  Giles,  66  N.  C.  512  ;  and  see 

conveyance  of  an  estate  is  good  and  effect-  Higginbotham   v.   Barton,   11  Ad.  &   EI. 

ual  without  attornment  of  the  tenant ;  but  307,  315. 

that  no  tenant  is  liable  who  has  paid  his  *  Smith  v.  Shepard,   15  Pick.   (Mass.) 

rent  without  notice  of  such  conveyance.  147;  Magill   v.    Hinsdale,    6    Conn.  464; 

Code,  1867,  §  1568.  Jones  v.  Clark,  20    Johns.  (N.  Y.)    51  ; 

The  mortgagee  is  entitled  to  the  rents  Jackson  v.  De  Lancey,  11  lb.  365  ;  see  Sou- 

upon  giving  notice  to  the  tenant.     Marx  ders  v.  Vansickle,   8   N.  J.  L.  (3   Halst.) 

V.  Marx,  51   Ala.   222;  Knox  v.  Easton,  315. 

38  Ala.  345;  Hutchinson  v.  Bearing,  20  &  Cavis  v.  McClary,  5  N.  H.  529. 
Ala.  798 ;  Mansony  v.  U.  S.  Bank,  4  Ala. 
600 


A  lessee's  rights  and  liabilities.     [§§  779,  780. 

in  place  of  the  mortgagor  as  landlord  ;  but  it  is  a  new  undertak 
ing  and  must  be  valid  as  a  new  agreement  if  valid  at  all.  This 
was  the  view  taken  by  Mr.  Justice  Christiancy  of  Michigan  in  a 
recent  case  :  ^  "If  it  be  said  that,  though  the  mortgage  does  not 
give  the  mortgagee  the  right  to  possession  against  the  will  of  the 
mortgagor,  yet,  by  the  consent  of  the  mortgagor  and  the  tenant, 
he  may  be  let  into  possession,  and  thus  acquire  the  right  to  rent  ; 
so,  I  reply,  may  any  other  person  not  holding  a  mortgage  acquire 
in  the  same  way  the  right  to  possession  and  the  right  to  rent,  by 
any  valid  agreement  to  that  effect.  But,  in  both  cases  alike,  I 
think  it  would  depend  upon  the  contract  as  such,  which  might  be 
made  between  them,  and  not  upon  the  doctrine  of  attornment." 

779.  Tenants  cannot  be  allowed  compensation  for  im- 
provements, although  they  have  taken  leases  for  a  term  of  years, 
with  a  certain  rent,  and  have  made  advancements  of  money  to 
the  mortgagor  under  an  agreement  that  he  should  expend  it  in 
buildings  and  improvements,  and  he  so  spends  it.^ 

If  the  mortgagor,  or  his  tenants,  or  others  claiming  under  him, 
make  improvements,  they  can  avail  themselves  of  their  improve- 
ments b}'  paying  the  mortgage  debt. 

If,  during  the  pendency  of  an  action  to  foreclose  a  mortgage, 
the  mortgagor  makes  leases  under  which  the  lessees  enter  and  re- 
tain actual  possession  under  claim  of  right,  the  mortgagee,  after 
recovering  judgment  for  possession  against  them,  is  entitled  to 
recover  damages  for  rents  and  profits  from  the  time  when  the 
formal  possession  was  delivered  to  him  ;  and  not  merely  for  the 
rents  and  profits  of  the  land,  but  also  for  the  rents  and  profits  of 
buildings  erected  and  improvements  made  on  the  premises  by  the 
tenants,  although  they  had  reason  to  believe  that  their  title  under 
the  lease  was  valid. ^ 

780.  Emblements.  —  A  mortgagor  is  subject  to  ejectment 
without  notice  whenever  the  mortgagee  has  the  right  to  enter, 
and  is  not  entitled  to  the  growing  crops.*  His  tenant  has  no 
greater  rights.  The  mortgagee  may  treat  him  as  a  trespasser  ; 
he  may  enter  immediately  and  take  the  emblements. 

1  Hogsettr.  Ellis,  17  Mich.  351.  ^  Haven    v.   Adams,  4  Allen    (Mass.), 

2  Haven  v.  Boston  &  Worcester  11.  R.     80. 

Co.  8  Allen  (Mass.),  369.  *  See  §§  697,  776. 

601 


§§  781,  782.]     A  lessee's  rights  and  liabilities. 

By  foreclosure  and  sale,  the  purchaser  of  the  premises  becomes 
entitled  to  the  possession  of  them,  and  to  all  the  crops  then  grow- 
ing on  them  ;  and  a  lessee  holding  the  property  under  a  lease 
from  the  mortgagor  made  subsequently  to  the  mortgage,  without 
the  concurrence  of  the  mortgagee,  has  no  greater  right  than  the 
mortgagor  to  the  emblements.^  Under  such  a  lease  the  lessee 
holds  subject  to  all  the  rights  of  the  mortgagee,  unimpaired  and 
unaffected ;  and  is  liable  to  trespass  for  taking  and  carrying  away 
the  crops  growing  at  the  time  of  the  sale. 

781.  No  one  but  the  mortgagee  can  take  advantage  of  the 
invalidity  of  a  lease  as  to  him.  —  It  has  been  held,  however, 
that  although  a  lease  made  by  a  mortgagor  after  the  execution 
of  the  mortgage  is  not  binding  upon  the  mortgagee,  and  the  les- 
see holds  subject  to  the  rights  of  the  mortgagee,  yet  if  the  mort- 
gagee does  not  object  to  the  lease  as  interfering  with  his  rights  or 
as  impairing  the  security  the  mortgage  was  intended  to  give, 
or  that  there  has  been  any  forfeiture  of  the  conditions,  a  stran- 
ger should  not  be  permitted  to  volunteer  such  objections,  which 
are  strictly  technical,  in  order  to  avoid  liability  for  an  unau- 
thorized trespass.  This  was  the  determination  of  the  Supreme 
Court  of  Missouri  in  a  case  where  the  lessee  under  such  a  lease 
brought  suit  for  trespass  upon  the  leased  premises  by  carrying 
away  a  large  amount  of  lead  ore.  The  defendant  was  not  al- 
lowed to  set  up  the  invalidity  of  the  lease  as  against  the  mort- 
gagee.^ 

782.  Provision  authorizing  the  mortgagor  to  bind  the,  mort- 
gagee by  leases.  —  Doubtless  a  provision  may  be  made  in  a 
mortgage,  which  would  enable  the  mortgagor  while  remaining  in 
possession  to  give  leases  of  the  premises  which  would  be  binding 
upon  the  mortgagee  or  any  one  claiming  under  him  after  a  breach 
of  the  condition  of  the  mortgage,  and  possession  taken  by  him 
under  it.  But  when  the  circumstances  are  such  that  the  power 
reserved  by  the  mortgagor  to  make  leases  is  repugnant  to  the 
purposes  of  the  mortgage,  the  exercise  of  it  will  not  avail  to  make 
the  leases  valid  beyond  the  time  of  a  breach  of   the  condition. 

1  See  §  697  ;  Lane  v.  King,  8  Wend.        2  Kennett  v.  Plummer,  28  Mo.  142. 
(N.  Y.)  584  ;  Downard  v.  Groff,  40  Iowa, 
597. 

602 


A  lessee's  rights  and  liabilities.  [§  782. 

Such  was  held  to  be  tlie  case  where  a  raih-oad  company  executed 
a  mortgage  to  trustees  to  secure  bonds  of  tlie  form  annexed 
thereto,  which  contained  a  certificate  that  it  was  secured  by  a 
mortgage  of  real  estate,  and  the  mortgage  contained  a  provision 
authorizing  the  trustees  upon  a  breacli  of  the  condition,  at  the 
request  of  the  bondholder,  to  take  possession  of  the  premises,  or 
under  certain  circumstances  to  sell  them  at  public  auction ;  and 
the  mortgage  further  provided,  that  until  breach  of  the  condi- 
tion the  mortgagor  should  remain  in  undisturbed  possession  and 
occupation,  "  and  that  nothing  herein  contained  shall .  be  so  con- 
strued as  to  prevent  said  corporation  from  improving  said  real 
estate,  or  making  leases  of  such  parts  thereof  as  they  may  desire 
and  have  opportunity  to  make."  ^  Leases  were  made  by  the  cor- 
poration for  a  long  term  of  years,  and  the  rent  was  partly  paid  in 
advance,  and  the  mortgagees  having  subsequently  foreclosed  the 
mortgage,  the  tenants  claimed  that  the  leases  were  valid  by  virtue 
of  this  clause.  In  construing  this  provision  in  its  application  to  the 
leases,  and  in  determining  whether  they  were  within  the  right  re- 
served, the  court  advert  to  the  purpose  for  which  the  mortgage  was 
made,  saying  that  it  was  not  made  to  secure  the  mortgagees  their 
private  claims  but  debts  due  to  bondholders,  that  the  bonds  were 
made  to  be  sold  in  the  market  and  were  transferable  by  delivery. 
The  leases  provided  for  the  application  of  the  rents  to  the  pay- 
ment for  improvements,  and  to  the  payment  of  interest  on  bonds 
of  the  corporation  held  by  the  lessees  in  a  way  to  create  a  pref- 
erence over  the  bondholders  generally.  "  If  the  right  to  create 
such  a  preference,"  say  the  court,  "  had  been  so  clearly  expressed 
in  the  mortgage,  and  stated  in  the  certificate  on  the  bonds,  as  that 
all  parties  understood  it,  the  bonds  must  have  been  regarded  as  un- 
sound, and  would  have  had  little  or  no  market  value.  And  if  the 
parties  to  the  mortgage  intended  that  such  a  right  should  be  re- 
served, the  certificate  must  be  regarded  as  fraudulent,  and  as  de- 
signed to  give  the  bonds  a  fictitious  credit.  It  is  impossible  to' 
state  a  stronger  case  of  repugnance  to  the  object  of  a  grant." 
It  was  therefore  decided  that  the  validity  of  the  leases  terminated 
upon  breach  of  the  condition  of  the  mortgage,  and  that  the  trus- 
tees could  not,  by  an  oral  assent,  confii-m  them  so  as  to  give  them 
validity  for  a  longer  time. 

1  Haven  v.  Adams,  4  Allen  (Mass.),  80. 

603 


§§  783-785.]      A  lessee's  rights  and  liabilities. 

783.  A  lease  made  by  the  mortgagee  in  possession  is  neces- 
sarily terminated  by  a  redemption  of  the  mortgage,  unless  there 
has  been  some  express  or  implied  authority  from  the  mortgagor 
to  lease  for  a  given  time.^  But  it  has  been  held  that  if  all  the 
parties  are  before  a  court  of  chancery,  the  court  will  not  direct  the 
delivery  of  possession  at  a  time  that  would  work  great  hardship 
to  the  lessee.^  Ordinarily,  however,  the  mortgagor  may  upon 
redemption  treat  the  mortgagee's  tenant  as  a  trespasser  and  re- 
cover possession  without  notice,  just  as  a  mortgagee  may  upon 
entry  treat  the  mortgagor's  lessee.  The  only  safety  for  a  lessee 
in  taking  a  lease  of  premises  subject  to  a  mortgage  is  to  obtain 
the  concurrent  action  of  the  mortgagor  and  mortgagee  in  the  ex- 
ecution of  the  lease. 

784.  An  assignment  by  a  mortgagee  in  possession  does  not 
transfer  any  rent  due  at  the  time  of  the  assignment  without  ex- 
press words  to  that  effect ;  nor  does  it  pass  any  right  of  action  the 
mortgagee  had  for  any  appropriation  of  the  products  of  the  land 
by  the  mortgagor  or  any  other  person.^  In  Salmon  v.  Bean^ 
Lord  Chancellor  Truro  upon  this  question  said  :  "  One  would 
think  that  this  was  a  very  ordinary  matter  :  men  are  in  the  daily 
habit  of  conveying  estates,  and  if  the  by-gone  rents  in  arrear  do 
not  pass  by  a  conveyance  of  the  fee,  what  is  the  rule  of  law  that 
makes  a  difference  in  the  case  of  a  mortgage?"  In  conclusion, 
he  added  :  "  I  am  unable  to  understand,  having  listened  atten- 
tively to  the  argument,  upon  what  principle  of  law  or  equity  the 
assignee  of  a  mortgage  can  claim  the  rent  due  before  the  assign- 
ment to  him,  he  not  pretending  that  the  assignment  contains  any 
words  of  transfer  beyond  those  incidental  to  the  transfer  of  the 
mere  mortease." 


"£)""&" 


785.  When  the  mortgagee  of  a  leasehold  estate  liable  for  the 
rent.  —  A  mortgage  of  a  leasehold  estate,  being  in  law  an  assign- 
ment of  the  lease,  makes  the  mortgagee  liable  upon  the  covenants 
of  the  lease  for  the  payment  of  rent,  from  the  time  of  the  mort- 
gage, as  this  covenant  in  the  lease  runs  with  the  land,  and  binds 

1  Hungerford  v.  Clay,  9  Mod.  I  ;  Wil-  ^  Salmon  v.  Dean,  3  Mac.  &  G.  344; 
lard  V.  Harvey,  5  N.  H.  2.52.  Kimball   r.  Lewiston    Steam  Mill    Co.  55 

2  Holt  V.  Rees,  46  111.  181;    S.  C.  44  Me.  494. 
111.  30.  4  Supra. 

604 


A  lessee's  rights  and  liabilities.  [§  785. 

the  party  holding  the  legal  estate.  It  makes  no  difTerence  whether 
the  mortgagee  be  in  possession  or  not ;  if  he  is  assignee  of  the 
entire  term  he  is  liable  on  the  real  covenants  of  the  lease. ^  But 
where,  as  in  New  York,  a  mortgage  is  considered  as  a  mere  lien,  a 
mortgagee  not  in  possession  is  not  considered  as  an  assignee  of 
the  entire  term,  and  therefore  it  is  held  that  he  is  not  liable  for 
rent  until  he  takes  possession  .^ 

Where  the  registry  laws  of  a  state  require  the  recording  of 
mortgage  or  the  assignment  of  it  to  make  it  vt^lid,  if  not  recorded 
it  is  ineffectual  to  pass  the  legal  estate,  and  liability  upon  these 
covenants  is  not  incurred  by  the  person  taking  such  unrecorded 
instrument."^ 

In  making  a  mortgage  of  a  leasehold  estate  it  is  often  prefer- 
able for  the  mortgagee  to  take  a  lease  of  the  property  for  a  period 
short  of  the  Avhole  term,  rather  than  a  formal  mortgage  of  the 
leasehold  estate  which  amounts  to  an  assignment  of  the  whole 
term,  and  makes  the  mortgagee  liable  upon  the  covenants  of  the 
lease,  although  he  does  not  enter  into  possession  of  the  property. 
A  lease  or  an  assignment  of  the  rents  for  a  period  short  of  the 
whole  term  subjects  him  to  no  such  liability  ;  but  on  the  other 
hand,  it  is  not  so  complete  a  security,  especially  as  it  leaves  the 
mortgagor  in  a  position  to  forfeit  and  defeat  the  estate.  There- 
fore in  taking  security  upon  a  leasehold  estate,  the  mode  of  effect- 
ing it  is  a  matter  to  be  determined  according  to  the  cii'cumstances 
of  the  case. 

If  a  lessee  assign  his  estate  by  way  of  mortgage,  the  assignee 
is  liable  on  the  covenants  of  the  lease  to  pay  rent,  although  he 
does  not  actually  enter  and  take  possession  under  the  mortgage  ; 
but  he  is  only  liable  for  the  rent  which  accrues  after  the  taking  of 
the  mortgage.  The  covenants  of  the  lease  running  with  the  land, 
it  is  regarded  as  a  necessary  consequence  that  the  mortgagee,  by 
becoming  vested  of  the  whole  legal  estate,  is  liable  for  the  per- 
formance of  the  covenants.* 

1  Williams  v.  Bosanquet,  1  Brod.  &  B.  2  -Walton  v.  Cronly,  14  Wend.  (N.  Y.) 

238,  overruling  Eaton  v.  Jaqucs,  2  Doug.  63  ;  Astor  v.  MiUer,  2  Paige  (N.  Y.),  68  ; 

456,  where   Lord   Mansfield   held   that   a  Astor   v.   Hoyt,    5   Wend.   (N.    Y.)   603; 

mortgagee  out  of  possession  was  not  liable.  Childs  v.  Clark,  3  Barb.  (N.  Y.)  Ch.  52. 

See  Lester  v.  Hardest)',  29  Md.  50 ;  May-  ^  Lester  v.  Hardesty,  29  Md.  50. 

hew  V.  Hardesty,  8  Md.  479  ;  Pingrey  v.  *  M'Murphy  u.  Minot,  4  N.  H.  251. 
Watkins,  15  Vt.  479  ;  Farmers'  Bank  v. 
Mut.  Assurance  So.  4  Leigh  (Va.),  69. 

605 


§  785.]  A  lessee's  rights  and  liabilities. 

The  mortgagee  of  a  leasehold  estate  is  entitled,  in  the  absence 
of  any  stipulation  to  the  contrary,  to  all  rents  that  subsequently 
become  due,  and  may  maintain  an  action  against  the  tenants  to 
recover  them :  but  he  has  no  right  to  the  rents  that  were  due  at 
the  time  of  the  grant  to  him  of  the  reversion.^ 

The  mortgagee  is  entitled  to  the  benefit  of  any  covenants  con- 
tained in  the  lease  for  a  renewal  of  it,  and  his  lien  attaches  to  the 
renewed  lease.^ 

1  Burden  v.  Thayer,  3  Met.  (Mass.)  76.        2  gige  v.  Manhattan   Co.  I   Paige  (N. 

y.),  48. 

606 


CHAPTER  XIX. 


ASSIGNMENT   OF  MORTGAGES. 


1.  A  Formal  Assignment. 

786.  Form  of  assignment.  —  An  assignment  of  a  mortgage 
is  usually  effected  by  a  brief  form  in  which  the  mortgage  is  iden- 
tified by  a  recital  of  the  names  of  the  parties  to  it,  of  its  date, 
and  of  the  book  and  page  in  the  registi-y  where  it  is  recorded, 
without  any  other  description  of  the  property.-^     If  the  reference 


^  The  form  of  assignment  in  common 
use  in  New  England  is  generally  as  fol- 
lows :  — 

"  Know  all  men  that  I,  ,  of  , 

the  mortgagee  named  in  a  certain  mort- 
gage deed  given  by  ,  to  secure  the 
payment  of  dollars,  dated  , 
and  recoi'ded  in  Registry,  book  , 
page  ,  in  consideration  of  dollars 
to  me  paid  by  ,  of  ,  the  receipt 
whereof  is  hereby  acknowledged,  do  hereby 
assign,  transfer,  and  set  over  to  the  said 
,  the  said  mortgage  deed,  the  real 
estate  thereby  conveyed,  and  the  note  and 
claim  thereby  secured. 

"  To  have  and  to  hold  the  same  to  the 
said  ,  and  his  heirs  and  assigns,  to 
their  own  use  and  behoof  forever. 

"  In  witness  whereof,  I,  the  said  , 

hereunto  set  my  hand  and  seal  this 
day  of  ,  in  the  year  ." 

If  the  assignment  is  indorsed  upon  the 
mortgage  deed  the  phraseology  is  changed 
by  reference  to  the  within  mortgage  deed, 
and  the  form  thereby  made  shorter.  If 
the  assignment  be  by  an  assignee  he  should 
be  so  described. 

The  common  form  of  an  assignment  as 
used  in  New  York  and  some  other  states 
is  as  follows :  — 


"  Know  all  men  by  these  presents,  that 
I,  ,  of  ,  in  consideration  of 

dollars,  to  me  paid,  have  sold,  bargained, 
transferred,  and  set  over,  and  by  these 
presents  do  sell,  assign,  transfer,  and  set 
over  unto  ,  of         ,  a  certain  indent- 

ure of  mortgage,  bearing  date  the  day 

of  ,  18     ,  made  by  ,  of  , 

to  secure  the  payment  of  dollars, 

payable  in  years  from  the  date  thereof, 

with  interest  semi-annually,  at  the  rate  of 
per  cent.,  which  mortgage  is  recorded 
&c.,  together  with  the  bond  or  obligation 
therein  described,  and  the  money  due,  and 
to  grow  due,  thereon,  with  the  interest  : 

"  To  have  and  to  hold  the  same  unto  the 
said  ,  his  executors,  administrators, 

and  assigns,  forever,  subject  only  to  the 
proviso  in  the  said  indenture  of  mort- 
gage mentioned  ;  and  I  do  hereby  make, 
constitute,  and  appoint  the  said  party  of 
the  second  part  my  true  and  lawful  attor- 
ney, irrevocable,  in  my  name  or  otherwise, 
but  at  his  own  proper  costs  and  charges, 
to  have,  use,  and  take  all  lawful  ways  and 
means  for  the  recovery  of  the  said  money 
and  interest ;  and  in  case  of  payment,  to 
discharge  the  same  as  fully  as  I  might  or 
could  do,  if  these  presents  were  not  made. 

"  In  witness,  &c." 

607 


§  787.]  ASSIGNMENT    OF   MORTGAGES. 

to  the  mortgage  is  so  deficient  that  the  register  cannot  tell  by  the 
description  what  mortgage  is  intended,  and  therefore  omits  to 
make  the  usual  reference  to  the  assignment  on  the  margin  of  the 
record  of  the  mortgage,  the  assignee  may  lose  all  benefit  of  the 
record. 1  It  is  usual  to  deliver  with  the  assignment  the  original 
mortgage  ;  but  this  is  not  essential.^  It  is,  however,  essential  to 
a  formal  and  complete  assignment  that  the  note  or  bond  secured 
by  the  mortgage  should  be  indorsed  or  otherwise  assigned,  and 
delivered  with  the  assignment ;  or  at  any  rate  that  an  intention 
should  be  manifest  to  assign  the  mortgage  debt  to  which  the  mort- 
gage is  only  an  incident ;  otherwise  the  assignment  will  only  pass 
a  naked  legal  title  to  the  land. 

787.  The  legal  title  to  a  mortgage  can  only  be  transferred 
by  deed.,^  except  in  those  states  where  the  common  law  character 
of  the  mortgage  as  an  estate  in  land  has  given  place  to  the  doc- 
trine that  the  mortfjao-e  is  a  mere  chattel  interest. 

An  assignment  though  indorsed  upon  the  mortgage,  and  de- 
livered with  it,  if  not  under  seal,  conveys  only  an  equitable  inter- 
est.^ It  does  not  pass  the  legal  estate,  though  it  will  authorize 
the  assignee  to  enforce  the  mortgage  in  equity.^  It  must  also 
contain  the  words  necessary  in  an  ordinary  deed  of  land  to  pass 
the  legal  estate,  as  for  instance  words  of  grant.^ 

Forms  much  briefer  than  these  are  in  Lyford  v.  Ross,  33  Me.  197  ;  Warren  v. 
use  in  some  states ;  for  instance,  in  Ma-  Homestead,  33  Me.  256 ;  Givan  v.  Tout, 
KYLAND  it  is  provided  by  Statute  Code,  7  Blackf.  (Ind.)  210;  Burton  v.  Baxter, 
art.  24,  §  31,  and  Laws  1868,  p.  693,  lb.  297;  Henderson  v.  Pilgrim,  22  Tex. 
that  an  assignment  of  a  mortgage  indorsed  464,  478.  Although  the  language  of  the 
upon  the  original  in  the  following  form,  or  assignment  creates  a  trust  in  the  assignee, 
to  like  effect,  shall  be  deemed  sufScient  to  if  it  vests  in  him  the  legal  title  he  can  fore- 
convey  to  the  assignee  every  right  which  close  it.  Phelps  v.  Townsley,  10  Allen 
the  assignor  had  at  the  time  under  the  (Mass.),  554. 
mortgage  :  —  *  Adams  v.  Parker,  su2:>ra. 

"1  hereby  assign  tl^e  within  mortgage  ^  Kinna  v.  Smitk,  3  N.  J.  Eq.  (2  Green) 

to                 .     Witness  my  band  and  seal,  14. 

this            day  of           ,             (Seal.)"  e  Cottrell  r.  Adams,  2  Biss.  351.    "The 

1  Moore  v.  Sloan,  50  Barb.  (N.  Y.)442.  proper  technical  words  of  an  assignment 

2  Warden  v.  Adams,  15  Mass.  233.  are  'assign,  transfer,  and  set  over.'     But 

3  Warden r.  Adams,  15  Mass. 233  ;  Par-  the  words  'give,  grant,  bargain,  and  sell,* 
sons  V.  Welles,  17  Mass.  419  ;  Adams  v.  or  any  other  words,  which  show  the  intent 
Parker,  12  Gray  (Mass.),  53  ;  Douglass  v.  of  the  parties  to  make  a  complete  transfer, 
Durin,  51  Me.  121;  Smith  v.  Kelley,  27  will  amount  to  an  assignment."  4  Cruise 
Me.    237  ;    Dorkray   v.   Noble,  8  Greenl.  Dig.  88. 

(Me.)  278;  Dwinel  v.  Perley,  32  Me.  197;        In  New  Jersey  it  is  provided  by  stat- 
608 


A   FORMAL   ASSIGNMENT.  [§§  788,  789. 

An  assignment  by  deed  puts  the  assignee  in  the  phice  of  the 
mortgagee.^  It  passes  the  legal  estate,  and  enables  the  assignee 
to  foreclose  in  his  own  name.  The  mortgagee  has  no  longer  any- 
right  or  interest  in,  or  claim  to  the  lands  mortgaged,  and  an  action 
in  his  name  in  respect  to  them  can  be  no  longer  maintained.^ 

The  second  or  third  or  any  subsequent  assignee  taking  the  mort- 
gage and  note  before  maturity  takes  the  same  estate  and  the  same 
rights  that  the  first  assignee  had.^ 

788.  Consideration.  —  Whether  the  assignee  of  a  mortgage 
has  paid  value  foi-  it  or  not  does  not  concern  the  mortgagor,  ex- 
cept in  reference  to  his  interposing  an  equitable  defence  in  the 
way  of  payment  or  set-off.'*  Although  the  assignee  has  purchased 
the  mortgage  for  less  than  the  amount  due  upon  it,  it  is  none  the 
less  a  valid  security  for  the  entire  debt." 

Neither  the  mortgagor,  nor  a  purchaser  subject  to  the  mort- 
gage, can  redeem  except  by  paying  the  amount  due  on  the  mort- 
gage. 

If  a  mortgage  be  made  without  consideration  for  the  purpose 
of  being  negotiated,  the  price  paid  b}^  the  assignee  becomes  the 
consideration  of  the  mortgage,  and  makes  it  a  valid  security.^ 
The  assignee  is  not,  however,  bound  to  see  that  the  money  he 
pays  for  it  is  applied  to  the  use  of  the  mortgagor." 

789.  Possession  of  the  mortgagor  does  not  prevent  as- 
signment. —  After  a  mortgagee  has  been    disseised    he    cannot 

ute  that  m/ortgagcs  shall  be  assignable  at  ance  of  real  estate,  except  in  form,  while  it 

law,  and  that  the  assignee  may  sue  in  his  is  in  fact  only  a  security  for  money-     Mc- 

own   name.     The  assignment  must  be  in  Candiess  v.  Engle,  51  Pa.  St.  .309. 

writing,  but  need  not  be  under  seal.    Nix-  ^  Hills  v.  Eliot,  12  Mass.  26. 

ou's  Dig,  p.  613  ;  Mulford  v.  Peterson,  35  -^  Gould  v.  Newman,  6  Mass.  239.    See 

N.  J.  L.  127.  Reading   of  Judge  Trowiiridge,  8  Mass. 

In  Pe\nstlvaxi\,  also,  it  is  provided  551  ;  Pryor  v.  Wood,  31  Pa.  St.  142. 

that  an  assignee  may  maintain  scire  facias  ^  Hoitt  v.  Webb,  36  N.  11.  158. 

or  other  suit,  upon  a  mortgage  and  bond  *  Adair  v.  Adair,  5  Mich.  204. 

in    his   own  name;    but   the   assignment  ^  Warner  v.   Gouverneur,  1   Barb.  (N. 

should  be  a  formal  one,  under  seal,  and  Y.)  36;  Knox  v.  Galligan,  21  Wis.  470; 

attested  by  two  witnesses.     1   Brightly's  Pease  v.  Benson,  28  Me.  .336. 

Purdon's  Dig.  p.  485  ;  and  see  Twitchell  v.  ^  Croft  v.  Bunster,  9  Wis.  503  ;  Schafer 

McMurtrie,  77  Pa.  St.  383.     Although  a  v.  Ueilly,  50  N.  Y.  61. 

formal  assignment  passes  the  legal  estate,  ^  Westervclt  v.  Scott,  11    N.  J.  Eq.  (3 

and  the  assignee  may  sue  in  his  own  name,  Stock.)  80  ;  McCurdy  v.  Agnew,  8  N.  J. 

yet  a  mortgage  is  not  considered  a  convey-  Eq.  (4  Ilalst.)  733. 

VOL.1.                           39                    "  609 


§  790.]  ASSIGNMENT    OF   xMORTGAGES. 

make  a  valid  assignment.  In  this  respect  the  general  doctrine 
applies  that  a  disseisee,  without  an  entry  and  delivery  of  the  deed 
on  the  land,  cannot  convey  a  title  valid  as  against  the  disseisor.^ 
Ordinarily,  however,  the  possession  of  the  mortgagor  is  the  posses- 
■  sion  of  the  mortgagee,  and  is  not  adverse  ;  and  such  possession  is 
therefore  no  obstacle  to  an  assignment.^  Even  exclusive  posses- 
sion by  the  mortgagor,  with  a  claim  of  exclusive  ownership  does 
not  of  itself  amount  to  a  disseisin  of  the  mortgagee.  The  posses- 
sion of  the  mortgagor  being  the  possession  of  the  mortgagee,  it 
follows  that  the  disseisin  of  the  mortgagor  is  the  disseisin  of  the 
mortgagee,  and  so  long  as  the  disseisor  is  in  possession,  the  mort- 
gagee cannot  pass  his  interest  in  the  land  by  a  deed  of  assign- 
ment.^ From  the  disseisin  of  the  mortgagor  an  intent  to  dis- 
seise the  mortgagee  who  holds  under  him  follows  as  a  matter  of 
course,  unless  the  disseisor  expressly  recognizes  the  mortgagee's 
title.4 

A  second  mortgagee  may  make  a  valid  assignment  of  his  inter- 
est, although  he  has  at  the  time  been  ousted  from  possession  by. 
one  claiming  under  a  prior  mortgage  from  the  same   mortgagor.^ 

In  New  Hampshire  it  is  settled  rule  that  a  conveyance  by  a 
mortgagee  not  in  possession  does  not  pass  the  debt  secured  by 
the  mortgage,  and  does  not  pass  any  inter  est  in  the  land  ;  but 
a  devise  of  his  interest  in  the  mortgaged  premises  passes  the 
debt  secured.  The  intention  of  the  testator  governs  the  con- 
struction of  the  will.^ 

790.  Delivery  is,  of  course,  as  essential  to  the  validit}^  of  an 
assignment  of  a  mortgage,  as  it  is  to  the  validity  of  the  mortgage 
itself  ;  and  therefore  if  it  be  executed  and  acknowledged,  and 
made  complete  in  every  other  way,  if  it  be  not  delivered  to  the 
assignee  it  amounts  to  nothing." 

To  constitute  a  delivery  of  an  assignment,  an  intention  to  pass 

1  Dadmun  v.  Lamson,  9  Allen  (Mass.),  ^  Poignand  v.  Smith,  8  Pick.    (Mass.) 
85  ;  Hunt  v.  Hunt,  14  Pick.  (Mass.)  385.  272 ;  S.  C.  6  lb.  172. 

2  Murray  v.  Blackledge,  71  N.  C.  492;  •*  Dadmun  v.  Lamson,  9  Allen  (Mass.), 
Sheridan  v.  Welch,  8  Allen,  166;  and  see  85  ;  Lincoln  v.  Emerson,  108  Mass.  87. 
James   v.  Morey,  2    Cow.    (N.  Y.)    246  ;  ^  Nichols  v.  Reynolds,  1  R.  L  30. 
Converse  v.  Searls,  10  Vt.  578 ;  Gould  v.  e  ciark   v.    Chirk,  56   N.  H.  105,  and 
Newman,  6  Mass.  239  ;  Reading  of  Judge  cases  cited. 

Trowbridge,  8  Mass.  551.  7  Rose  v.  Kimball,  16  N.  J.  Eq.  185; 

Eankin  v.  Major,  9  Iowa,  297. 

610 


A   FORMAL   ASSIGNMENT.  [§  791. 

the  property  in  the  debt  and  mortgage  must  be  shown.  A  re- 
quest by  the  assignor  to  the  assignee  to  have  the  assignment  re- 
corded as  soon  as  the  former  should  die,  when  it  is  shown  that 
the  assignee  did  not  have  exclusive  control  of  it,  but  that  the  as- 
signor collected  interest  on  the  mortgage,  and  otherwise  treated  • 
it  as  his  own  property,  and  never  indorsed  or  delivered  the  mort- 
gage note,  makes  manifest  an  intention  that  the  assignment  should 
not  be  operative  until  the  death  of  the  assignor ;  and  conse- 
quently it  is  a  nullity  as  being  inconsistent  with  the  statute  of 
wills. -^ 

791.  The  assignee  should  notify  the  owner  of  the  estate 
of  his  rights.  —  The  assignee  of  a  mortgage,  as  a  practical  mat- 
ter, should  always  give  notice  of  the  assignment  to  the  holder  of 
the  equity  of  redemption,  if  he  wishes  to  protect  himself  against 
payments  which  may  be  made  in  good  faith  to  the  assignor.  The 
recording  of  the  assignment  is  not  of  itself  such  notice  of  the 
assignment  as  will  afford  such  protection.^  The  fact  that  the 
mortgagor  in  paying  an  instalment  of  the  interest  or  principal 
does  not  require  the  production  of  the  mortgage  note  or  bond,  for 
the  purpose  of  having  the  payment  indorsed  upon  it,  does  not 
raise  a  presumption  of  bad  faith  on  his  part ;  and  under  some 
circumstances  no  such  presumption  would  arise  from  his  omission 
to  require  a  delivery  up  of  the  securities,  upon  paying  off  the 
whole  amount  of  the  mortgage  debt ;  ^  though  under  other  cir- 
cumstances such  omission  would  make  him  chargeable  with  knowl- 
edge of  the  transfer,  and  would  make  the  payment  ineffectual.* 

If  the  assignee  of  a  mortgage  fails  to  give  notice  of  the  assign- 
ment, and  so  acts  as  to  authorize  the  mortgagor  to  believe  that 
the  mortgagee  is  still  the  owner  of  it,  he  is  estopped  from  deny- 
ing the  right  of  the  mortgagor  to  deal  with  the  mortgagee  as  the 
owner.^ 

1  ShurtleflFt'.  Francis,  118  Mass.  154.  ^  y^n  Keuren  v.  Corkins,  supra;  Hub- 

2  See  Reed  v.  Marble,  10  Paige  (N.  Y.),     bard  t'.  Turner,  2  McLean,  519. 

413 ;  Van   Keuren  v.  Corkins,  6   Thomp.  *  Brown  i-.  Blydenburgh,  7  N.  Y.  141  j 

&  C.  (N.  Y.)  355  ;  4  Hun,  129  ;  James  v.  Doubleday  i-.  Kress,  50  N.   Y.  410;  Fos- 

Johnson,  6  Johns.    (N.    Y.)   Ch.   427;  2  ter  v.  Beals,  21   N.  Y.  247;  Mitciiell  v. 

Cow.  246  ;  N.  Y.  Life  Ins.  &  Trust  Co.  t'.  Cook,  17  How.  (N.  Y.)  Pr.  110;  29  Barb. 

Smith,  2  Barb.  (N.  Y.)  Ch.  82  ;  Trustees  243. 

of  Union  College  r.  Wheeler,  61  N.  Y.  88,  ^  McCabc  r.  Farnsworth,  27  Mich.  52. 
Ill  ;  Johnson  i'.  Carpenter,  7  Minn.  170; 


Horstman  v.  Gerker,  49  Pa.  St.  282. 


611 


§  792.]  ASSIGNMENT    OF   MORTGAGES. 

2.    Whether  an  Assignment  may  he  compelled. 

792.  A  mortgagee  cannot  be  compelled  in  equity  to  assign 
his  mortgage,  on  receiving  payment,  in  order  that  subsequent 
parties  in  interest  may  adjust  their  respective  rights.  He  is 
entitled  to  be  paid,  or  to  proceed  to  foreclosure,  without  being 
obliged  to  investigate  titles  arising  after  his  own.  He  may  release 
his  interest  on  receiving  payment,  and  leave  after  claimants  to 
the  preferences  which  their  respective  titles  give  them  when  his 
mortgage  is  discharged.^ 

A  mortgagee  is  not  bound  to  protect  other  parties  who  have 
interests  in  the  property  by  assigning  his  mortgage  to  any  one. 
His  whole  duty  is  performed  by  releasing  his  interest  on  receiving 
payment.  When,  therefoi'e,  the  equity  of  redemption  of  a  bank- 
rupt had  been  sold  by  his  assignee,  but  the  bankrupt  and  his 
wife  having  a  homestead,  and  the  wife  an  inchoate  right  of 
dower,  sought  to  obtain  an  assignment  of  the  mortgage  so  that  it 
might  continue  as  security  for  the  amount  paid,  it  was  held  that 
they  were  not  entitled  to  an  assignment  which  their  bill  prayed 
for,  but  that  the  bill  might  be  maintained  as  a  bill  to  redeem.^ 
Any  one  having  a  subsequent  incumbrance  upon  the  mortgaged 
estate  can  protect  his  interest,  by  paying  the  prior  mortgage  when 
it  is  due,  and  he  thereupon  succeeds  by  subrogation,  on  settled 
principles  of  equity,  to  the  rights  and  interests  of  such  prior  mort- 
gagee in  the  lands,  as  security  for  the  amount  so  paid,  without 
any  assignment  or  transfer  by  the  prior  mortgagee.  He  is  not 
entitled  to  an  assignment.^ 

The  mere  fact  that  one  has  a  right  to  redeem  a  mortgage  does 
not  enable  him  to  compel  an  assignment  of  it  to  himself.  There 
must  be  some  equitable  reason  for  it,  as  that  the  redeeming  party 
is  in  the  position  of  a  surety  and  is  entitled  to  be  subrogated  to  the 
position  of  the  holder  of  the  mortgage ;  or  that  the  mortgagee, 
or  the  mortgagor,  or  both  of  them  were  about  to  do  something 
to  injure  or  destroy  his  own  security.*     It  has  been  erroneously 

1  Butler   77.    Taylor,   5    Gray    (Mass.),  ^  Ellsworth  v.  Lockwood,  42  N.  Y.  89, 
455.     See  §  1064.  96,  and  cases  cited ;  Burnet  v.  Denniston, 

2  Lamb  v.   Montague,  112  Mass.  352;  5  Johns.  (N.  Y.)  Ch.  35;  Hubbard  v.  As- 
Butler  V.  Taylor,  5  Gray   (Mass.),  455  ;  cutney  Mill  Dam  Co.  20  Vt.  402. 

and  see  McCabe  v.  Bellows,  7  Gray  *  Ellsworth  v.  Lockwood,  42  N.  Y.  89  ; 
(Mass.),  148,  as  to  requirement  that  whole  Vandercook  v.  Cohoes  Sav.  Inst.  5  Hun 
mortgage  be  redeemed.  (N.  Y.),  641. 

612 


WHETHER   AN   ASSIGNMENT   MAY   BE   COMPELLED.         [§  793. 

assumed  in  some  cases  that  tlie  right  to  compel  an  assignment  of 
a  prior  mortgage  and  the  debt  flows  from  the  right  of  redemp- 
tion.^  After  a  review  of  the  cases  upon  this  point  in  New  York, 
Mr.  Justice  Sutherland  ^  saj's  :  "  Upon  the  whole,  I  do  not  think 
it  can  be  said  to  be  the  law  of  this  state,  that  the  right  to  redeem 
a  mortgage,  that  is,  the  right  to  compel  the  holder  of  it  to  accept 
or  receive  payment  of  it,  after  it  is  due  and  payable,  carries  with 
it  the  right,  upon  such  redemption,  to  an  assignment  of  the  mort- 
gage, and  of  the  bond  or  other  instrument  evidencing  the  mort- 
gage debt,  or  of  either,  unless  the  redeeming  party  has  the  posi- 
tion of  surety,  or  can  be  regarded  as  surety  for  the  mortgage 
debt." 

793.  "When  an  assignment  may  be  compelled  in  equity.  — 
Sometimes  an  assignment  may  be  compelled  in  a  court  of  equity. 
This  may  be  done  when  the  circumstances  are  such  that  the  mort- 
gagee has  no  beneficial  interest  in  the  security,  but  in  fact  holds  it 
in  trust  for  another  who  is  entitled  to  the  control  of  it.^ 

In  like  manner,  when  the  mortgagor  has  conveyed  the  premi- 
ses, subject  to  the  mortgage,  and  the  holder  of  the  mortgage  after- 
wards attempts  to  enforce  it  against  him,  he  is  entitled  to  be 
subrogated  to  the  position  of  the  holder,  who  may  therefore  be 
ordered  to  assign  the  bond  and  mortgage  to  him,  or  to  a  third 
person  for  his  benefit,  on  receiving  the  amount  due  upon  it.^ 
"  This  cannot  prejudice  the  creditor,  and  it  is  clearly  equitable  as 
between  the  debtor  and  the  owner  of  the  land.  He  clearly  has 
no  right  or  color  of  right,  justice,  or  equity  to  claim  that  he,  not- 
withstanding the  conveyance  of  the  property  subject  to  the  mort- 
gage, and  thus  entitling  him  only  to  its  value  over  and  above  it, 
should  in  fact  enjoy  and  hold  it  discharged  of  the  incumbrance 
without  any  contribution  toward  its  discharge^  and  satisfaction 
from  the  land."     It  is  proper,  too,  that  the  assignment,  if  so  de- 


1  Pardee  v.  Van  Anken,   3  Barb.   (N.  other  cases  in  which  an  assignment  may 

Y.)  536  ;  Jenkins  v.  Continental  Ins.  Co.  be  compelled  in  equity,  see  Lyon's  Appeal, 

12  How.  (N.  Y.)  Pr.  66.  61  Pa.  St.  15.     Sec  §  1065. 

-  In  Ellsworth  v.  Lockwood,  supra.  *  Johnson  f,  Zink,   52  Barb.   (N.    Y.) 

3  Mount  V.  Suydam,4  Sandf.  (N.  Y.)  396;  51   N.  Y.  333;  Baker  v.   Terrell,  8 

Ch.  399.     To  be  entitled  to  an  assignment,  Minn.  195. 

one  must  be  the  holder  of  the  next  lien.  ^  Per  Chief  Commissioner  Lott,  on  ap- 

Bishop  V.  Ogden,  9  Phila.  (Pa.)  524.     For  peal,  in  Johnson  v.  Zink,  supra. 

613 


§§  794,  795.]  ASSIGNMENT    OF   MORTGAGES. 

sired,  should   be  made  to   another  person   for  the  benefit  of  the 
mortgagor. 

An  assignment  in  such  cases  furnishes  the  only  complete  pro- 
tection, for  if  the  mortgagee  should  cancel  the  mortgage  upon  the 
record,  or  release  the  mortgaged  premises  upon  receiving  payment, 
the  owner  of  the  equity  of  redemption  might  sell  the  property  to 
a  bond  fide  purchaser,  or  a  creditor  of  his  might  attach  it  or  levy 
an  execution  upon  it. 

3.    Who  may  make  an  Assignment. 

794.  A  mortgage  made  to  two  persons  jointly,  to  secure  a 
note  payable  to  them  jointly,  may  be  assigned  by  one  of  them  in 
the  name  of  both  ;  but  if  it  secures  separate  debts,  both  must  join 
in  an  assignment. ^  Where  a  mortgage  note  was  indorsed  to  two 
persons,  each  was  regarded  as  entitled  to  one  half  interest  in  the 
note  and  the  proceeds  of  it,  and  was  held  to  be  incapable  of  trans- 
ferring any  other  or  greater  interest.^  Where  a  mortgage  is  made 
to  two  or  more  persons  and  one  of  them  dies,  it  would  seem  that 
if  the  mortgage  was  given  to  secure  a  joint  debt,  the  survivor  or 
survivors  might  assign  the  mortgage  ;  but  if  given  to  secure  sep- 
arate debts  or  obligations,  it  is  necessary  to  join  the  representa- 
tives of  the  deceased  mortgagee.^ 

795.  One  of  several  trustees  who  hold  a  mortgage  cannot 
make  a  valid  assignment  of  it.  All  must  join.*  On  the  death  of 
one  trustee,  the  survivors  succeed  to  the  rights  to  which  all  of 
them  were  before  jointly  entitled.  But  a  mere  abandonment  or 
mismanagement  of  a  trust,  by  one  trustee,  does  not  divest  his 
legal  interest  in  the  trust  property,  and  transfer  it  to  the  other 
trustees.  Such  transfer  can  be  made  only  by  deed,  or  by  some 
legal  process.^ 

1  Bruce  v.  Bonney,  12  Gray  (Mass.),  5  Webster  v.  Vandeventer,  supra.  In 
107,  110.     See  §  135.  this  case  one  of  the  persons  to  whom,  "as 

2  Herring  i'.  Wootlhull,  29  111.  92.  trustees  of  the  society  of  Shakers  in  En- 

3  Gilson  V.  Gil^on,  2  Allen  (Mass.),  field,"  a  mortgage  had  been  assigned,  had 
115,  117;  Savary  v.  Clements,  8  Gray  left  the  society  and  moved  away,  and  en- 
(Mass.),  155;  Burnett  y.  Pratt,  22  Pick,  gaged  in  other  business.  He  had  more- 
(Mass.),  556.  over  received  a  large  sum  of  money  from 

*  Austin   V.    Shaw,    10   Allen    (Mass.),     the  society  in  consideration  of  his  claims. 
552 ;    Webster  v.    Vandeventer,   6   Gray 
(Mass.),  428. 

614 


WHO    MAY   MAKE    AN   ASSIGNMENT.  [§§  796,  797. 

796.  In  general  one  of  two  or  more  executors  or  adminis- 
trators may  make  a  valid  assignment  of  a  mortgage  without  the 
others  joining  in  the  act  of  transfer  ;  ^  and  this  rule  has  been  held 
to  apply  as  well  to  a  mortgage  taken  by  executors  in  their  own 
names  as  such,  after  the  deatli  of  their  testator,  as  to  one  given 
to  the  testator  in  his  lifetime,  provided  the  money  when  received 
would  be  assets  of  the  testator's  estate. ^ 

An  assignment  by  the  executors  of  the  mortgagee  to  a  son  of 
the  testator,  who  is  also  a  co-executor,  is  valid. ^ 

An  executor  or  administrator  can  generally  assign  a  mortgage 
without  a  license  for  that  purpose,  inasmuch  as  a  mortgage  is  re- 
garded as  only  a  chattel  interest  which  immediately  vests  in  the 
personal  representative  of  the  mortgagee  upon  his  decease.* 

When  a  mortgage  has  been  foreclosed  in  the  hands  of  an  exec- 
utor or  administrator,  the  chattel  interest  of  the  mortgage  has 
then  beconii^  real  estate,  and  he  should  obtain  a  license  of  court 
before  selling  the  premises  ;  yet  in  such  case  a  conveyance  by  him 
without  license  would  not  be  void,  but  only  voidable  by  the  heirs 
or  creditors  of  the  deceased.^ 

797.  Assignment  by  foreign  administrator.  — Although  a 
mortgage  is  regarded  as  a  mere  chattel  interest,  yet  a -foreign  ad- 
ministrator cannot,  by  virtue  of  his  appointment  in  another  state, 
assign  the  mortgage.^  Titles  to  real  estate  are  regulated  and  es- 
tablished by  the  lex  loci  rei  slice  ;  and  whenever  the  official  act  of 
an  executor  or  administrator  is  necessary  to  make  title  to  real  es- 
tate, his  authority  must  appear  by  letters  testamentary,  or  letters 
of  administration  granted  in  the  state  where  the  land  is  situated.'' 

1  Bac.  Ab.  Exr's  &  Admr's,  D. ;  George  license  of  the  Probate  Court  in  case  the 
V.  Baker,  3  Allen  (Mass.),  324;  Bogert  v.  mortgagee  had  died  "before  recovery  of 
Hertell,  4  Hill  (N.  Y.),  492.  seisin   and   possession."     The  Rev.   Stat. 

2  Bogert  V.  Hertell,  supra;  S.  C.  9  1836,  c.  65,  §§  11, 14,  rendered  such  license 
Paige  (N.  Y.),  52  ;  3  Edw.  Ch.  20.  The  necessary.  Ex  parte  Blair,  13  Met.  126  ; 
court  of  errors  overruled  the  opinions  of  but  by  statute  1849,  c.  47,  Gen.  Stat.  c. 
the  chancellor  and  vice-chancellor  to  the  96,  §  12,  and  c.  98,  §  5,  authority  was 
contrary.  given  to  make  the  sale  without  license. 

3  Hitciicock  r.  Merrick,  15  Wis.  522.  ^  Baldwin  v.  Timmins,  3  Gray  (Mass.), 
*  Ladd   V.  Wiggin,  35  N.  H.  421 ;  Ex     302. 

parte   Blair,    13   Met.    126;    Crooker    v.  6  Cutter  u.  Davenport,  1   Pick.  (Mass.) 

Jewell,  31  Me.  306.  81. 

In  M.\SSACHUSKTT8,  by  statute  1788,  c.  "^  Hutchins    v.   State    Bank,    12    Met. 

51,  §  1,  sale  of  a  mortgage  might  be  made  (Mass.)  421,  424. 
by  an  executor  or  administrator  without 

615 


§§  798-800.]  ASSIGNMENT    OF   MORTGAGES. 

798.  A  treasurer  or  other  officer  of  a  corporation  has  no 
authority  by  virtue  of  his  office  merely,  and  aside  from  the  au- 
thority of  a  by-law  or  a  special  power  given  by  the  company,  to 
execute  an  assignment  of  a  mortgage,  and  his  use  of  the  seal  of 
the  corporation,  of  which  he  has  charge,  does  not  serve  to  give 
the  assignment  so  made  by  him  any  validity. ^  Of  course  a  sub- 
sequent ratification  of  the  act  by  the  corporation  will  supply  the 
original  want  of  authority,  and  make  the  act  valid. 

799.  Assignment  by  an  incorporated  association.  —  If  a 
mortgage  be  made  or  assigned  to  certain  persons  as  trustees  of  an 
association  not  incorporated,  the  legal  title  vests  in  these  persons 
jointly,  and  no  valid  assignment  can  be  made  by  the  association, 
or  by  one  of  the  mortgagees,  but  all  must  join  in  the  deed  in 
order  to  make  a  valid  assignment. ^  In  the  absence  of  any  evi- 
dence that  power  of  alienation  by  such  trustees  is  restrained  by 
the  by-laws  of  the  association,  their  assignment  of  a  mortgage 
will  pass  the  legal  title.^ 

The  organization  of  a  voluntary  loan  fund  association  into  a 
corporation  does  not  transfer  their  property  without  a  formal  con- 
veyance or  assignment.'^  Neither  does  the  title  vest  in  new  trus- 
tees who  may  be  elected  from  time  to  time,  but  remains  in  the 
original  trustees  or  their  survivors  until  transferred  by  their  deed.^ 

800.  Partnership.  —  A  mortgage  to  a  partnership  consisting 
of  several  members  should  be  assigned  by  a  deed  executed  by  all 
the  partners  ;  for  although  it  belongs  to  the  partnership,  the  legal 
estate  is  in  the  individual  members  of  it,  as  tenants  in  common. 
One  partner  cannot  make  a  legal  assignment  by  executing  an  as- 
signment in  the  name  of  the  firm  ;  ^  but  he  can  make  an  equitable 
assignment  by  a  transfer  of  the  debt,  and  therefore  a  mortgage  to 
a  partnership  to  secure  a  debt  due  the  firm  will  equitably  pass  by 
an  assignment  of  all  debts  due  the  firm,  executed  in  the  name  of 

1  Jackson  v.  Campbell,  5  Wend.  (N.  Y.)  *  Manahan  v.  Varnum,  11  Gray  (Mass.), 

572.  405;  Holland  I'.Cruft,  3  Gray  (Mass.),  173. 

^Austin    V.    Shaw,    10   Allen  (Mass.),  ^  Peabody  y.  Eastern  Methodist  Society 

552  ;   Webster  i;.    Vandeventer,   6    Gray  in  Lynn,  5  Allen  (Mass.),  540. 

(Mass.),  428;  Chapin  f.  First  Universalist  ^  And   see  Dillon  v.  Brown,   11    Gray 

Church  in  Chicopee,  8  Gray  (Mass.),  580.  (Mass.),  179.     See  §§  119-123. 

^  Manahan  v.  Varnum,  11  Gray  (Mass.), 
405. 

616 


i 


WHO   MAY   MAKE   AN   ASSIGNMENT.  [§§   801,  802. 

the  firm  by  one  member  of  it,  to  secure  a  debt  due  from  the  firm 
to  the  assignee.^  Although  it  is  a  general  rule  that  a  partner  can- 
not bind  his  copartners  by  an  instrument  under  seal,  yet  as  he  can 
make  an  equitable  assignment  without  using  a  sealed  instrument 
at  all,  the  addition  of  a  seal  does  not  vitiate  such  an  assignment, 
any  more  than  the  addition  of  a  seal  to  a  bill  of  sale  of  goods 
would  vitiate  the  sale.^ 

801.  Assignment  by  attorney.  —  A  mortgage  being  an  estate 
or  interest  in  land  can  be  assigned  only  by  deed.  An  attorney  ex- 
ecuting an  assignment  in  behalf  of  his  principal  must  have  author- 
ity under  seal.  That  he  is  an  attorney  in  fact  is  not  sufficient, 
without  a  subsequent  ratification.  But  if  one  partner  execute  an 
assignment  in  behalf  of  his  copartner,  in  the  course  of  the  part- 
nership business,  under  the  authority  of  the  partnership  articles 
which  are  under  seal,  and  provide  that  the  business  of  the  part- 
nership shall  be  transacted  by  the  person  who  executed  the  assign- 
ment, the  authority  is  sufficient.  It  is  not  necessary  to  the  valid- 
ity of  the  foreclosure  of  the  mortgage  so  assigned  that  the  author- 
ity to  execute  the  assignment  should  be  recorded.^ 

802.  Mortgage  of  indemnity.  —  The  condition  of  a  mortgage 
of  indemnity  is  saved  if  the  debt  for  which  the  indemnity  is  taken 
is  paid  by  the  principal  debtor,  according  to  its  terms.  The  mort- 
gage in  that  case  never  becomes  operative  and  available,  and  the 
mortgagee  has  then  no  interest  which  he  can  assign.  It  is  imma- 
terial in  this  respect  whether  the  original  debt  is  paid  by  the  mort- 
gagor in  money,  or  by  a  new  note  with  other  sureties  ;  the  mort- 
gagee not  being  upon  the  renewed  note  is  exonerated  and  dis- 
charged from  his  liability,  and  his  interest  under  his  mortgage 
having  ceased,  he  cannot  pass  any  interest  by  an  assignment  of  it, 
even  to  the  new  sureties.* 


^  Dubois's  App.  38  Pa.  St.  2.31.  note,   by  renewal  or  otherwise,  then  the 

2  Everit  v.  Stronj?,  5  Hill  (N.  Y.),  ICJ.  niortfj:a<^e  should  be  void;  and  it  was  re- 

8  Morrison    v.   Mendenhall,    18    Minn,  newed  with  different  sureties.     One  ground 

232;  see  Atkinson  v.  Patterson,  4G   Vt.  of  tlie  decision  was  tliat  a  transfer  to  others 

750.  was  not  within  the  conteni{)hition  of  the 

*  Abbott  V.    Upton,    19   Pick.    (Mass.)  parties  at  the  time  of  the  execution  of  the 

434 ;    Bonham   r.    Galloway,    13    III.  68.  mortgage.      But   the   same  decision    was 

The  condition  in  this  latter  case  was  that  reached  in  the  former  case  without  this 

if  the  mortgagor  should  pay  and  satisfy  his  special  form  of  condition.    See  §§  379-387. 

617 


§  803.]  ASSIGNMENT    OF    MORTGAGES. 

A  mortgage  of  indemnity  is  assignable  after  the  mortgagee  has 
paid  the  debt  against  which  he  is  indemnified  ;  but  until  that 
time  he  has  nothing  that  he  can  assign. ^  If,  however,  he  procures 
the  payment  of  the  debt  by  a  third  person  for  his  benefit,  he  may 
transfer  the  mortgage  to  such  third  person  as  security  for  the  pay- 
ment, although  this  be  done  before  the  maturity  of  the  debt ;  and 
the  mortgagor  cannot  claim  that  such  payment  is  a  performance 
of  the  condition  of  the  mortgage,  so  as  to  revest  the  title  in  him.^ 

It  must  appear,  however,  that  the  assignment  was  made,  or  at 
least  agreed  upon,  at  the  time  the  assignee  paid  the  debt  for  which 
the  mortgage  was  given  as  indemnity  ;  otherwise,  the  payment 
will  discharge  the  debt,  and  the  assignment  will  not  pass  any  in- 
terest as  against  any  intervening  interest.  Thus,  for  instance, 
where  a  third  person  under  an  agreement  with  the  principal 
debtor,  and  not  with  the  surety,  who  held  the  mortgage,  paid  the 
debt  in  tliree  instalments,  but  did  not  take  an  assignment  of  the 
mortgage  until  the  time  of  paying  the  last  instalment,  it  was  held 
that  in  the  absence  of  proof  of  any  arrangement  with  the  mort- 
gagee for  an  assignment,  the  first  two  payments  extinguished  the 
mortgage  jpro  tanto^  and  that  it  was  not  in  the  power  of  the  par- 
ties to  revive  it  as  against  intervening  incumbrancers.^ 

803.  The  assignment  of  a  mortgage  conditioned  for  the 
support  of  the  mortgagees,  after  a  breach  of  the  condition,  does 
not  operate  as  a  release  of  the  claim  for  support.  The  assignee 
may  claim  the  performance  of  the  condition  of  the  mortgage  for 
the  benefit  of  the  mortcjaaee.  The  mortsfaoor  has  no  occasion  to 
object  to  the  assignment.  This  affects  his  rights  and  duties  in 
only  one  respect  ;  if  he  has  notice  of  the  assignment,  he  must  pay 
to  the  assignee  any  sum  that  is  due  as  damages  for  past  breaches 
of  the  condition  to  support.* 

1  Abbott  V.   Upton,    19    Pick.    (Mass.)  fore  the  maturity  of  the  note  he  told  the 

434;  Wallace  I'.  Goodall,  18  N.  H.  439;  mortgagee   that  he  must  provide  for  the 

Hall?;.  Cushman,    16   lb.   462;  Weeks  v.  note;  and  four  days  before  it  became  due 

Eaton,  15    lb.   14.5.     And    see    Jones   v.  the  mortgagee  arranged  for   its  payment 

Quinnipiack  Bank,  29  Coun.  25.  by   another  to  whom  he  transferred  the 

'-  Murray  v.  Catlett,  4   Gi'eene   (Iowa),  mortgage. 
108;  Camp   v.  Smith,  5   Conn.  80.     The  ^  pghon  r.  Knapp,  21  Wis.  63. 
condition  of  the  mortgage  in  this  case  was  *  See   §§   388-395  ;    Mitchell   v.  Burn- 
that  the  mortgagor  would  "  well  and  truly  ham,  57  Me.  314. 
pay  said  note  according  to  its  tenor."    Be- 

618 


WHAT    CONSTITUTES    AN   ASSIGNMENT.  [§  804. 

4.    What  constitutes  an  Assignment. 

804.  Assignment  of  mortgage  without  the  debt.  —  In  gen- 
eral, if  an  assignment  of  a  mortgage  be  made  without  any  transfer 
of  the  note  or  bond  secured  by  the  mortgage,  the  assignee  takes 
only  a  naked  legal  estate,  which  he  will  hold  in  trust  for  the 
owner  of  the  note  or  other  mortgage  debt.^  The  transfer  of  the 
debt  is  essential  to  an  effective  assignment  of  the  mortgage. 

When  it  is  said  that  a  transfer  of  a  mortgage  without  the  debt 
secured  by  it  is  a  nullity ,2  the  qualification  should  be  made  that 
where  the  mortgagee  has  possession  by  virtue  of  his  mortgage,  or 
where  the  mortgagee  is  not  in  possession,  but  the  condition  has 
been  broken,  a  conveyance  or  assignment  of  the  mortgaged  prem- 
ises would  be  valid  to  transfer  the  right  of  possession.^ 

A  purchaser  of  the  mortgage  title,  not  finding  the  note  in  the 
possession  of  the  mortgagee,  is  held  to  take  it  subject  to  the  rights 
of  any  person  to  whom  the  mortgage  debt  has  been  previously  as- 
signed.* If,  however,  a  mortgagee  makes  a  deed  or  release  of  the 
premises  or  a  part  of  them  to  a  person  holding  from  other  sources 
a  valid  title  to  the  premises,  subject  only  to  the  incumbrance  of 
the  mortgage,  and  who  has  no  object  in  acquiring  possession  of 
the  personal  obligation,  but  is  only  concerned  in  perfecting  his 
title,  a  deed  or  transfer  unaccompanied  with  the  mortgage  debt 
avails  to  discharge  the  mortgage  lien.  If,  thei-efore,  the  pur- 
chaser of  a  portion  of  an  estate  subject  to  a  mortgage,  which  the 
mortgagee  has  assigned  by  an  unrecorded  assignment,  afterwai'ds 
takes  a  quitclaim  deed  of  the  whole  estate  from  the  mortgagee,  he 
acquires  a  good  title  to  the  part  which  he  previously  held  as 
against  the  mortgagee ;  but  as  to  the  residue  no  such  title  as  would 
prevail  against  the  prior  purchaser  of  the  mortgage  debt  accom- 
panied by  an  assignment  of  the  mortgage,  though  not  recorded.^ 
"  As  a  purchaser,"  says  Mr.  Justice  Dewey,  delivering  the  opinion 

1  Merritt  v.  Bartholick,  36  N.  Y.  44  ;  S.  Cornett,   29    Ind.   59  ;  Bailey   v.    Gould, 

C.  47  Barb.  253  ;  Aymar  v.  Bill,  5  Johns.  "Walk.  (Mich.)  478  ;  Thayer  v.  Campbell, 

(N.   Y.)   Cb.   570;  Jackson   v.  Willard,  4  9  Mo.  280  ;  Bell  v.  Morse,  6  N.   H.   205; 

Johns.  (N.  Y.)    41  ;  Cooper   v.  Newland,  Hutchins  v.  Carleton,  19  N.  H.  487. 

17  Abb.  (N.  Y.)  Pr.  342;  Swan  v.  Yaplc,  -  Carpenter  i-.  Longan,  16  Wall.  271  ; 

35  Iowa,  248 ;  Pope  i'.  Jacobus,  10  Iowa,  Thaj'er  v.  Campbell,  9  Mo.  277. 

262;    Sangster  v.   Love,    11    Iowa,  580;  3  Pickett  y.  Jones,  63  Mo.  195. 

Peters  v.  Jamestown  Bridge  Co.  5  Cal.  *  Kellogg  v.  Smith,  26  N.  Y.  18. 

334 ;  Doe  V.  McLoskey,  1  Ala.  708  ;  Car-  5  Wolcott    v.     Winchester,     15     Gray 

ter  V.  Bennett,  4  Fla.  283;  Johnson  v.  (Mass.),  461. 

619 


§  805.]  ASSIGNMENT   OF  MORTGAGES. 

of  the  court,  "  he  must  have  known  that  the  possession  of  the 
debt  was  essential  to  an  effective  mortgage,  and  that  without  it 
he  could  not  maintain  an  action  to  foreclose  the  mortgage.  The 
not  finding  it  in  the  possession  of  the  mortgagee,  and  not  stipu- 
lating for  any  transfer  of  such  debt,  are  circumstances  that  should 
estop  him  from  setting  up  any  title  against  the  hond  fide  purchaser 
of  the  debt,  who  had  possession  of  the  bond,  and  an  assignment 
of  the  mortgage  in  due  form  to  vest  the  legal  estate  in  him  as 
against  the  assignor,  and  only  defective  as  to  any  others,  in  not 
being  recorded." 

805.  An  assignment  of  the  mortgage  generally  carries  the 
debt.  —  An  assignment  by  the  mortgagee  of  his  mortgage  inter- 
est of  itself  conveys  the  right  to  receive  payment  of  the  notes, 
if  these  be  actually  sold  and  delivered  to  the  assignee  of  the  mort- 
gage. In  a  proceeding  to  foreclose  it  is  necessary  to  produce  the 
notes  in  order  to  rebut  the  presumption  of  payment  which  would 
result  from  their  absence.  The  note  is  the  most  direct  and  proper 
evidence  of  the  debt.  If  the  note  be  not  produced  its  absence 
must  be  accounted  for.^  But  the  beneficial  interest  in  the  debt  is, 
however,  generally  included  in  an  assignment  of  the  mortgage, 
although  the  terms  of  the  assignment  embrace  the  mortgage 
alone.  This  would  be  the  presumed  intention  of  the  parties  in 
all  cases  when  the  debt  has  not  been  already  transferred  to 
another.^ 

The  mortgage  being  merely  an  incident  of  the  debt  cannot  be 
assigned  separately  from  it  so  as  to  give  any  beneficial  interest. 
The  incident  may  pass  by  a  grant  of  the  principal,  but  not  the 
principal  by  the  grant  of  the  incidejit.^ 

Whether  a  deed  by  the  mortgagee  or  a  fornaal  assignment  of  a 
mortgage  by  him,  without  a  transfer  of  the  notes,  passes  the  ben- 
eficial interest  in  the  security  is  a  question  to  be  determined  by 
the  intention  of  the  parties,  which  may  be  gathered  not  merely 
from  the  words  of  the  deed  or  assignment,  but  from  the  situation 
of  the  parties  and  the  nature  of  the  transaction.^  The  mere  cir- 
cumstance that  the  assignment  would   be   inoperative,  unless  the 

1  King  I'.  Harrington,  2   Aikens   (Vt.),     lick,  36  N.  Y.  44;  S.  C.   47  Barb.   253; 
33  ;  Edgell  v.  Stanfords,  3  Vt.  202.  Cooper  v.  Newland,  17  Abb.   (N.   Y.)  Pr. 

2  Iv'orthampton   Bank  v.  Balliet,  8  W.     342. 

&  S.  (Pa.)  311 ;  Philips  v.  Bank  of  Lew-         3  Hitchcock  v.  Merrick,  18  Wis.  357. 
istown,  18  Pa.  St.  394;  Merritty.  Bartho-        *  Bukley  v.  Chapman,  9  Conn.  5. 

620 


WHAT    CONSTITUTES   AN   ASSIGNMENT.       [§§  806,  807. 

debt  be  held  to  pass  with  it,  is  not  sufficient,  it  would  seem,  to 
give  the  assignment  that  effect.  The  result  of  such  holding  would 
be  to  reverse  the  maxim  that  the  incident  passes  by  a  grant  of  the 
principal,  and  would  establish  the  contrary  rule  that  the  principal 
follows  the  incident.^  The  fact  that  an  assignment  was  made  at 
the  request  of  the  mortgagor  to  one  who  advanced  him  money  at 
the  time  is  evidence  of  an  agreement  between  the  parties  that  the 
mortgage  should  no  longer  continue  a  security  for  the  payment  of 
the  debt  which  it  was  originally  given  to  secure,  but  should  be  se- 
curity for  the  debt  then  created.^ 

806.  The  mere  delivery  of  the  mortgage  deed  without  the 
bond  or  note  does  not  constitute  a  transfer  of  it  either  by  way  of 
sale  or  pledge,  though  the  full  consideration  was  paid  or  mone}^  was 
advanced  upon  it.^  There  is  in  such  case  a  presumption  against 
an}'  transfer.  In  England  such  a  deposit  of  the  papers  would  con- 
stitute a  valid  lien,  and  is  a  very  common  mode  of  securing  a  loan. 
But  in  this  country,  under  the  recording  acts,  no  lien  upon  real 
estate  can  be  created  by  a  deposit  of  title  deeds.  Although  an 
assignee  by  a  regular  deed  of  assignment  has  knowledge  that  the 
mortgage  has  been  deposited  with  a  solicitor  for  the  purpose  of 
having  an  assignment  of  it  made  to  another,  he  acquires,  by  the 
deed  of  assignment  and  an  indorsement  of  the  note,  a  prior  lien 
upon  the  mortgaged  property,  and  it  does  rtot  matter  that  the 
mortefasre  deed  itself  is  not  delivered  to  him. 


"&'  o" 


807.  A  formal  assignment  of  the  mortgage  and  delivery 
of  note  without  indorsement  is  sufficient  evidence  of  title.  — 
When  a  mortgage  has  been  formally  assigned  and  the  mortgage 
note  delivered  to  the  assignee  without  any  indorsement  of  it,  the 

1  Per  Parker,  J.,  in  Mcrritt  v.  Bartho-  to  secure  the  payment  of  the  debts  of  the 
lick,  36  N.  Y.  44.  mortgagee  to  Wentworth.     Does  it  neces- 

2  Campbell  v.  Burch,  1  Lans.  (N.  Y.)  sarily  follow  that  the  intention  of  the  par- 
178.  ties  was  to  transfer  the  bond?     The  ref- 

8  Bowers  v.  Johnson,  49  N.  Y.  432  ;  eree  has  not  found  either  way  upon  this 
Merritt  f.  Bartholick,  36N.  Y.  44;  S.  C.  question  of  intent,  and  therefore,  unless 
47  Barb.  253.  In  the  latter  case  Mr.  Jus-  the  intent  in  question  is  to  be  inferred,  as 
tice  Parker,  in  the  Court  of  Appeals,  said  :  a  matter  of  legal  necessity,  from  what  he 
"  The  act  done  by  Merritt,  the  mortgagee,  does  find,  it  must  be  held  not  to  have  ex- 
was  the  delivery  of  the  mortgage  to  Went-  istcd."  Waiden  v.  Adams,  15  Mass.  233. 
worth,  and  the  purpose  of  the  delivery  was  See  §§  179-187,  457. 

621 


§  807.]  ASSIGNMENT   OF   MORTGAGES. 

mortgagor  is  not  justified  in  refusing  payment  to  the  assignee  on 
the  ground  that  the  note  has  not  been  indorsed  by  the  payee.-^ 
The  formal  assignment,  duly  acknowledged  and  recorded,  and  the 
possession  of  the  note,  is  the  best  possible  evidence  of  ownership, 
and  the  assignee  is  entitled  to  demand  and  enforce  payment 
whether  the  note  is  indorsed  or  not.  Such  an  assignment  is  a 
good  equitable  transfer  of  the  mortgage  and  note.^  It  is  sufficient 
evidence  of  an  intention  to  pass  the  beneficial  interest  in  this  se- 
curity. 

When,  however,  there  is  no  separate  obligation  for  the  mort- 
gage debt,  and  no  express  covenant  in  the  mortgage  for  the  pay- 
ment of  it,  then  the  remedy  upon  the  mortgage  is  confined  to  the 
lands,  and  an  assignment  of  the  mortgage  necessarily  transfers  all 
the  mortgagee's  rights  under  it.^  The  mortgage  is  then  the  prin- 
cipal and  only  thing,  and  is  not  an  incident  to  anything  else. 

The  assignee  of  a  mortgage  without  the  debt  can  maintain 
no  action  upon  it  except  at  the  request  of  the  holder  of  the  bond 
or  note  secured  by  it.  Judgment  could  only  be  entered  upon 
producing  the  separate  obligation  for  the  debt.*  According  to  the 
principles  of  equity  courts,  the  assignee  of  the  legal  title,  holding 
it  as  trustee  for  the  benefit  of  the  holder  of  the  mortgage  debt, 
would  be  compelled  either  to  foreclose  the  mortgage  for  the  ben- 
efit of  the  holder  of  the  debt,  or  to  assign  it  to  him. 

Contrary  to  the  generally  received  doctrine  it  is  held  in  Illinois 
that  a  mortgage  cannot  be  assigned  so  as  to  vest  the  legal  title 
in  the  assignee,  unless  the  debt  secured  be  of  a  character  assign- 
ble  at  law  ;  or  in  other  words,  unless  it  be  negotiable.  If  it  be 
negotiable,  the  assignee  becomes  the  legal  holder  of  the  indebt- 
edness, and  the  mortgage  as  a  mere  incident  passes  with  it,  and 
the  legal  title  to  that  vests  in  the  assignee.  Therefore,  it  is  held 
that  a  power  of  sale  in  a  mortgage  passes  to  the  assignee  in  the 
latter  case  and  may  be  exercised  by  him  ;  but  in  the  former  case, 
the  assignment  vests  only  an  equitable  interest  in  the  assignee, 

M^ease  V.  Warren,  29  Mich.  9  ;  and  see  416;    Severance    v.   Griffith,  2    lb.    38; 

King   V.   Harrington,   2   Aik.    (Vt.)    33.  Hone  2;.  Fisher,  2  Barb.  (N.  Y.)  Ch.  560 : 

Otherwise   see  Kelly   v.   Burnham,  9   N.  Coleman  v.  Van  Rensselaer,  44  How.  (N. 

H.  20;  Thorndike  v.  Norris,   24   N.    H.  Y.)  Pr.  368. 

454.  *  Webb  ?;.  Flanders,  32  Me.  175;  Gar- 

2  Pratt  V.  Skolfield,  45  Me.  386.  roc  v.   Sherman,  6  N.   J.    Eq.    (2  Halst.) 

3  Caryl  v.  Williams,   7  Lans.  (N.  Y.)  219. 

622 


WHAT   CONSTITUTES   AN   ASSIGNMENT.  [§  808. 

and  therefore  the  power  can   be   exercised  only  by  the  mortgagee 
himself. 1 

808.  A  deed  of  release  or  quitclaim  or  other  conveyance  is 
sufficient  to  pass  the  interest  of  the  mortgagee,  when  there  is  no 
separate  obligation  for  the  payment  of  the  debt ;  ^  and  is  suffi- 
cient also  when  there  is  a  separate  obligation,  and  this  is  delivered 
with  the  deed.^  A  warranty  deed  is  not  only  equally  effectual, 
but  would  also  pass  any  title  subsequently  perfected  by  the  mort- 
gagee* Such  also  is  the  effect  of  a  conveyance  by  one  having 
an  absolute  title  to  property  which  he  really  holds  by  mortgage 
title,  if  the  purchaser  from  him  has  i>otice  of  the  separate  defea- 
sance or  the  circumstances  which  make  the  transaction  a  mort- 
gage.^ There  are  other  cases  in  which  a  deed  of  the  land  by  the 
mortgagee  will  pass  no  interest  at  all,  nnless  it  be  a  mere  naked 
legal  estate.  Such  is  the  case  when  the  mortgagee  has  already 
transferred  the  mortgage  debt.^  Moreover,  the  deed  alone  will 
not  ])ass  the  mortgage  debt,  unless  the  intention  to  transfer  this 
as  well  is  expressed  in  it.  This  would  doubtless  be  the  case  when 
it  appeared  that  the  mortgagee  had  control  of  the  debt." 

Where  the  legal  title  is  regarded  as  remaining  in  the  mort- 
gagor, and  the  mortgagee  only  acquires  a  right  to  enforce  pa}^- 
ment  of  his  claim,  it  is  held  that  a  deed  made  by  the  holder  of 
the  mortgage  conveying  all  his  "estate,  title,  and  interest"  in 
the  real  estate  mortgaged  will  not  operate  as  an  assignment  of 
the  mortgage,  for  this  is  a  conveyance  of  the  land,  in  which  he 
has  no  title.  His  interest  is  a  chattel  interest  inseparable  from 
the  debt  it  was  given  to  secure.^ 

1  Mason  v.  Ainsworth,  58  111.  1G3.  506 ;    Lawrence     v.    Stratton,    6     Cush. 

2  Welch   r.   Priest,   8    Alien    (Mass.),     (Mass.)  163,  169. 

165;  Dorkrey  u.  Noble,  8  Me.  278;  Hill  ^  Decker  v.  Leonard,  6  Lans.  (N.  Y.) 
V.  More,  40  Me.  525;  Hunt  v.  Hunt,  14  264;  Leahigh  v.  White,  8  Nev.  147. 
Tick.  (Mass.)  382;  Freeman  v.  M'Gaw,  e  Bell  r.  Morse,  6  N.  H.  210;  Whitte- 
15  Pick.  (Mass.)  82,  86;  Thompson  v.  more  v.  Gibbs,  24  N.  H.  484;  Weeks  v. 
Keuvon,  100  Mass.  108;  Severance  v.  Eaton,  15  N.  H.  145;  Furbush  y.  Good- 
Griffith,  2  Lans.  (N.  Y.)  38 ;  Weeks  v.  wiu,  25  N.  H.  425  ;  Hobson  v.  Roles,  20 
Eaton,  15  N.  H.  145.  N.  H.  41. 

3  Dixfield  V.  Newton,  41  Me.  221;  f  Ellison  v.  Daniels,  11  N.  H.  274; 
Dearborn  v.  Taylor,  18  N.  H.  153  ;  Hob-  Parish  v.  Gilmanton,  lb.  298. 

son  V.   Koies,  20  N.  H.  41  ;  Furbush  v.        **  Swan   v.  Yaple,   35    Iowa,    248,   and 
Goodwin,  25  N.  H.  425.  cases   cited  ;  and   see   Aymar   v.   Bill,    5 

4  Buggies  V.  Barton,  13  Gray  (Mass.),    Johns.  (N.  Y.)  Ch.  570.     See  §§  17-59. 

623 


§  809.]  ASSIGNMENT   OF   MORTGAGES. 

In  like  manner  it  is  held  that  a  conveyance  by  the  mortgagee 
of  all  his  right,  title,  and  interest  in  the  land  passes  nothing  un- 
less the  debt  be  assigned,  as  the  mortgage  is  a  mere  security  inci- 
dent to  the  debt.i 

It  is  held  that  an  assignment  of  a  mortgage  to  be  effectual 
must  either  be  formal,  or  it  must  appear  from  the  instrument  that 
it  was  intended  to  operate  as  an  assignment.  A  conveyance  by 
the  mortgagee  before  entry  for  condition  broken  is  inoperative, 
unless  intended  as  an  assignment  of  the  mortgage  and  mortgage ' 
debt,  and  such  intention  be  made  to  appear.  Although  the  mort- 
gage be  in  the  form  of  an  absolute  deed  and  bond  for  reconveyance, 
if  the  bond  is  recorded  with  the  mortgage  the  mortgagee  cannot 
convey  any  interest  in  the  property  before  condition  broken,  unless 
it  be  by  assignment.  Unless  intended  to  operate  as  an  assign- 
ment of  the  mortgage  and  a  transfer  of  the  debt,  a  conveyance 
by  the  mortgagee  to  a  third  person  is  entirely  inoperative.  The 
intention  that  a  deed  shall  have  this  operation  must  be  made  to 
appear.^ 

But  if  the  mortgagee  be  in  possession,  his  conveyance  of  the 
mortgaged  property  is  regarded  as  passing  his  mortgage  interest, 
although  no  mention  in  terms  is  made  of  the  debt,  whether  it  be 
by  warranty  deed  or  quitclaim.^  It  moreover  transfers  his  right 
of  possession,  and  enables  the  grantee,  and  those  claiming  under 
him,  to  maintain  an  action  against  any  person  who  does  not  show 
a  better  title. '^ 

809.  Deed  by  heir  before  settlement  of  the  estate.  —  In- 
asmuch as  a  mortgage  is  assets  in  the  hands  of  the  personal  rep- 
resentative of  a  deceased  mortgagee,  a  deed  of  the  mortgaged 
premises  by  the  heir  before  foreclosure,  and  before  a  decree  of 
distribution  of  the  estate,  will  not  operate  as  an  assignment  of  the 
mortgage,^  and  will  not  even  convey  any  title  sutiicient  to  enable 
the  grantee  to  maintain  a  writ  of  entr}^  against  such  heir.^  The 
administrator  may,  notwithstanding  such  deed,  take  possession  of 

1  Peters  V.  Jamestown  B.  Co.   5   Cal.  Smith  r.  Smith,    15    N.  H.   55;  Hinds  v. 
335  ;  Nagle  v.  Maoy,  9  Cal.  428.  Ballon,  44  N.  H.  619. 

2  Grevey.  Coffin,  14  Minn.  345  ;  John-        *  Wallace  v.  Goodall,    18  N.  H.  439; 
son  V.  Lewis,  13   Minn.  364  ;  Hill   v.  Ed-  Hiitchins  v.  Carleton,  19  N.  H.  514. 
Avards,  11   Minn.  22,  29;  Gale  y.  Battin,         ^  Douglass  «.  Dnrin,  51  Me.  121;  Al- 
12  Minn.  287.  bright  v.  Cobb,  30  Mich.  355. 

3  Lamprey   v.   Nudd,   29    N.    H.   299;         6  Taft  r.  Stevens,  3  Gray  (Mass.),  504. 

624 


WHAT   CONSTITUTES   AN   ASSIGNMENT.      [§§  810,  811. 

the  premises  and  foreclose  the  mortgage,  if  no  redemption  be 
made.  The  conveyance  by  the  heir  does  not  pass  tlie  legal  es- 
tate, because  he  has  no  legal  estate  in  the  premises.  The  mort- 
gage title  as  well  as  the  debt  vests  solely  in  the  administrator. 
If  he  obtains  an  irredeemable  interest  by  foreclosure,  this  is  only 
the  ripening  and  perfecting  of  the  interest  he  already  has.  He 
may  then  sell  the  lands  by  license  of  court  for  the  payment  of 
debts,  and  if  not  sold  he  holds  them  for  the  benefit  of  the  same 
persons,  and  in  the  same  proportions  that  he  holds  the  personal 
estate  of  the  deceased,  and  they  may  claim  partition  accord- 
ingly.! 

810.  A  mortgage  of  land  by  one  whose  only  title  to  it  is  in 
mortgage  passes  his  mortgage  interest.  It  is  in  legal  effect  an 
assignment  of  his  mortgage.^  Although  the  debt  be  not  at  the 
time  formally  transferred  with  the  mortgage,  it  may  well  be  in- 
ferred that  the  intention  of  the  parties  was  to  make  a  complete 
assignment  of  the  mortgage.^ 

811.  A  conveyance  by  a  mortgagee  of  a  part  of  the  mort- 
gaged estate  to  a  third  person  is  in  like  manner  regarded  as  an 
equitable  assignment  of  the  mortgage  to  the  extent  of  the  pur- 
chase money  of  such  part,  especially  when  the  purchaser  has 
bought  in  good  faith  from  a  mortgagee  in  possession,  with  the 
assurance  on  his  part  that  he  had  a  perfect  title.*  "  It  is  as  im- 
portant," says  Mr.  Justice  Hoar,^  "  to  be  able  to  ascertain  from 
the  registry  the  existence  or  continuance  of  a  mortgage,  as  of  any 
other  legal  title.  Not  infrequently  the  whole  or  part  of  an  es- 
tate held  ill  mortgage  is  released  or  conveyed,  when  the  debt  is 
not  paid.  And  in  the  absence  of  fraud,  a  conveyance  by  the 
party  who  appears  on  the  record  to  be  the  owner  of  the  mortgage 

1  Taft  V.  Stevens,  supra,  Gen.  Stat,  of  assignment  of  the  mortgage  was  what  was 
Mass.  c.  97,  §  14.  really  intended. 

2  Murdoek  ('.Chapman,  9  Gray  (Mass.),  *  McSorley  «.  Larissa,  100  Mass.  270; 
156;  Central  Bank  v.  Copcland,  18  Md.  and  see  VVyman  y.  Hooper,  2  Gray  (Mass.), 
305.  141  ;   Welch   v.  Priest,    8   Allen  (Mass.), 

8  Dudley  v.  Cadwell,  19  Conn.  218.  165  ;  Grover  v.  Thatcher,  4  Gray  (Ma^s.), 

In  this   case    the   mortgage  notes  were  526 ;    Raymond    v.    Raymond,    7    Cush. 

not  delivered  till  long  alter  the  making  of  (Mass.)  605,  608. 

the  mortgage,  but  the  jury  fuund  that  these  ^  Welch  v.  Priest,  supra. 

were  parts  of  one  transaction,  and  that  an 

VOL.  I.                             40  626 


§  812.]  ASSIGNMENT   OF   MORTGAGES. 

should  be  sufficient  to  protect  a  purchaser  who  has  no  actual  or 
constructive  notice  of  title  in  any  other."  As  already  stated,  a 
transfer  by  a  mortgagee  of  his  entire  interest  under  a  mortgage 
is  ineffectual  unless  accompanied  by  the  mortgage  debt ;  but  the 
rule  is  different  when  a  portion  only  of  the  mortgaged  premises 
is  conveyed.  A  purchaser  of  a  portion  of  the  premises,  having 
in  view  merely  to  acquire  the  title  to  land,  has  no  occasion  to 
acquire  the  debt,  and  the  absence  of  it  does  not  imply  bad  faith 
on  his  part.^ 

The  mortgagee  by  a  deed  to  a  third  person  of  a  part  of  the 
mortgaged  premises  transfers  his  interest  in  such  portion,  but  he 
does  not  discharge  it  from  the  mortgage  so  far  as  the  mortgagor 
is  concerned ;  only  a  release  to  him  or  payment  by  him  will  have 
that  effect.'^ 

812,  An  ineffectual  foreclosure  sale  operates  as  an  assign- 
ment of  the  mortgage.  —  An  ineffectual  sale  under  a  power  in 
the  mortgage,^  or  an  irregular  sale  under  a  decree  of  foreclosure,* 
operates  as  an  assignment  of  the  mortgage  to  the  purchaser,  if  he 
has  paid  the  purchase  money  and  it  has  been  applied  to  the  pay- 
ment of  the  mortgage  debt.  In  like  manner  the  assignment  of  a 
decree  in  a  foreclosure  suit  for  a  residue  of  the  debt  after  a  sale  of 
the  property,  if  the  decree  proves  to  be  invalid  by  reason  of  there 
being  no  personal  service  or  otherwise,  will  operate  as  a  transfer 
of  the  mortgage  debt,  with  authority  to  enforce  it  by  appropriate 
remedies.^  The  assignment  of  a  judgment  rendered  on  the  mort- 
gage note  or  bond  is  an  equitable  assignment  of  the  mortgage;® 
and  an  assignment  of  a  judgment  for  a  part  of  the  mortgage 
debt  carries  an  interest  pro  tanto  in  the  mortgage.'' 

As  has  already  been  observed,  in  several  of  the  states  a  mort- 
gage is  considered  merely  a  chattel  interest,  and  not  a  conveyance 
of  land  within  the  statute  of  frauds.     In  these  states  the  tech- 

1  Wolcott  V.  Winchester,  15  Gray  w.  Cord,  14  Wis.  213  ;  Muir  y.  Berkshire, 
(Mass.),  461.  52  Ind.  149  ;  Johnson  v.  Robertson,  34  Md. 

2  Wyman  v.  Hooper,  2  Gray  (Mass.),  165;  Stackpole  w.  Bobbins,  47  Barb.  (N. 
141  ;  Grover  v.  Thatcher,  4  lb.  526.  Y.)  212  ;  and  see  Hill  v.  More,  40  Me.  515. 

3  Brown  v.  Smith,  116  Mass-  108  ;  Mer-  &  Lillibridge  v.  Tregent,  30  Mich.  105  ; 
rit  V.  Bowen,  7  Cow.  (N.  Y.)  13;  Robin-  and  see  Drury  v.  Morse,  3  Allen  (Mass.), 
son  V.  Ryan,  25  N.  Y.  320.  445. 

*  Brobst  V.  Brock,  10  Wall.  519  ;  01m-        6  Wayman  v.  Cochrane,  35  111.  152. 
sted  V.  Elder,  2  Sandf.  (N.^Y.)  325 ;  Moore        ^  Pattisou  v.  Hull,  9  Cow.  (N.  Y.)  747. 

.626 


EQUITABLE  ASSIGNMENTS.  [§  813. 

nical  views  of  the  rights  of  the  parties  to  a  mortgage  have  given 
place  to  the  equitable  views  of  it  entertained  by  courts  of  equity, 
and  a  parol  assignment  is  sufficient  if  accompanied  by  a  transfer 
of  the  bond  or  other  evidence  of  the  mortgage  debt. 

5.  Equitable  Assignments. 

813.  An  equitable  assignment  of  a  mortgage  may  be  made 
by  a  sale  of  it,  without  either  a  formal  transfer  of  the  mortgagee's 
interest  in  the  property,  or  an  indorsement  of  the  note. 

The  equitable  interest  of  the  purchaser  enables  him  to  deal 
with  the  mortgage  for  all  beneficial  purposes.^  He  may  enfoi'ce 
it  against  the  property  and  the  person  liable  upon  it.  Under  the 
old  practice  this  would  be  done  in  the  name  of  the  assignor  or 
person  in  "whom  the  legal  title  remains  ;2  but  under  the  codes 
adopted  in  some  of  the  states,  by  which  all  actions  are  prosecuted 
in  the  name  of  the  party  in  interest,  the  mortgage  would  be  en- 
forced in  the  purchaser's  own  name.^ 

But  the  mere  possession  by  a  third  pei'son  of  a  mortgage  not 
assigned,  and  a  note  not  indorsed  by  the  mortgagee,  is  not  suffi- 
cient evidence  of  his  ownership  of  them  to  enable  him  to  sustain 
an  action  upon  them.  He  must  allege  and  prove  his  ownership 
by  other  evidence."^ 

Where  an  assignment  by  a  transfer  of  the  note  enables  the  as- 
signee to  foreclose  the  mortgage  in  his  own  name,  the  assignment 
is  in  effect  not  merely  an  equitable,  but  a  legal  assignment.^     In 

1  Nelson  v.  Ferris,  30  Mich.  497.  138;  Runyan  v.  Meisereau,  11  Johns.  (N. 
3  Young  V.  Miller,  6  Gray  (Mass.),  153;     Y.)  534;  Jackson  v.  Blodget,  5  Cow.  (N. 

Bryant   v.  Damon,  lb.  564  ;  Partridge  v.  Y.)  202  ;  Green  v.  Hart,  1  Johns:  (N.  Y.) 

Partridge,  38  Pa.  St.  78;  Crane  v.  March,  580  ;  Austin  v.   Burbank,  2  Day  (Conn.), 

4  Pick.  (Miiss.)    131;  Vose  v.    Handy,  2  474;  Gower  u.  Howe,  20  Ind.  396. 

Greenl.  (Me.)  322;  Dimon   v.  Dimon,  5  In  Virginia  it  is   provided    by  statute 

Halst.  (N.  J.)  156.  that  the  assignee  of  any  "  bond,  note,  or 

2  Sangsteru.  Love,  11  Iowa,  580  ;  Rankin  writing,  not  negotiable,"  may  assert  his 
V.  Major,  9  Iowa,  297  ;  Allen  v.  Pancoast,  equitable  title  in  a  court  of  law,  even  in 
Spencer  (N.  J.)  68;  Kinna  v.  Smith,  2  his  own  name.  Code,  1873,  c.  141,  §  17; 
Green  (N.  J.)  Ch.  14;  Kamena  y.  Huel-  and  see  Garland  r.  Richeson,  4  Rand.  (Va.) 
big,  23  N.  J.  Eq.  78.  Nixon's  Dig.  p.  613  ;  266;  Clarksons  i-.  Doddridge,  14  Gratt. 
Mulford    V.   Peterson,  35    N.   J.  L.  127  ;  (Va.)  44. 

Southerin  v.  Mendum,  5  N.  H.  420  ;  Crow  *  Andrews  v.  Powers,  35  Wis.  644,  and 

V.  Vance,  4  Iowa,  434  ;  Paine  v.  French,  4  cases  cited.                                             * 

Ohio,  320;  Williams  v.Morancy,3  La.  Ann.  ^  Southerin  v.  Mendum,  5  N.  H.  420 

227  ;  Clearwater  v.  Rose,  1  Blackf.   (Ind.)  Rigney  v.  Lovejoy,  13  N.  H.  247. 

627 


§§  814,  815.]  ASSIGNMENT   OF   MORTGAGES. 

such  case,  upon  the  death  of  the  mortgagee,  no  beneficial  interest 
in  the  estate  passes  to  his  administrator. ^ 

When  it  phiinly  appears  by  the  pleadings  in  an  action  to  fore- 
close that  the  debt  was  assigned,  it  is  not  necessary  to  aver  that 
the  mortgage  was  assigned.  It  is  a  conclusion  of  law  that  the 
mortgage  passed  with  the  debt  as  an  incident  to  it.^ 

814.  After  such  assignment  the  mortgagee  cannot  discharge 
the  miortgage.  —  After  an  assignment  of  the  mortgage  note,  if 
negotiable,  to  an  innocent  party,  before  due,  and  for  a  good  con- 
sideration, the  mortgagee  cannot  enter  of  record  a  satisfaction  of 
the  mortgage,  although  the  note  was  given  without  any  considera- 
tion ;  and  satisfaction  so  entered  will  be  vacated  by  a  court  of 
equity.^  The  holder  of  the  note  is  entitled  to  the  protection  ac- 
corded to  the  holder  of  commercial  paper.  He  may  recover  the 
full  amount  due  on  it,  and  is  not  limited,  in  an  action  to  foreclose 
the  mortgage,  to  the  amount  he  actually  paid  for  the  securities 
with  interest.* 

He  takes  it  free  from  any  existing  equities  between  the  mort- 
gagor and  mortgagee.^  He  holds  the  mortgage  by  the  same  title 
that  he  holds  the  notes,  and  subject  to.  no  defence  that  would  not 
be  good  against  them.*^  The  assignment  by  express  terms  may 
be  made  subject  to  all  existing  equities,  as  where  it  contained  a 
clause  declaring  it  "subject,  however,  to  all  the  rights  of  the  said 
mortgagor  in  and  to  the  same."  "^ 

A  mortgagee  who  discharges  a  mortgage  of  record  after  having 
assigned  it,  the  discharge  being  effectual  because  the  assignment 
has  not  been  recorded,  is  liable  to  the  holder  of  the  mortgage  for 
the  amount  secured  by  it,  whether  his  intention  in  discharging  it 
was  fraudulent  or  not.^ 

815.  A  bond  for  a  conveyance  of  real  estate  when  assigned 
as  security  for  a  debt  is  in  the  nature   of  a  mortgage.     The  as-^ 

1  Crosby  v.  Brownson,  2  Day  (Conn.),  Hicliens,   11   Wis.  353;    Fisher  v.  Otis,  3 
425 ;  Dudley  v.  Cadwell,  19  Conn.  218.  Chand.  (Wis.)  83. 

2  Kurtz  V.  Sponable,  6  Kans.  395.  ^  Martineau    v.    McCollum,   4    Chand. 

3  Gordon    i'.     Mulhare,    13    Wis.    22;  (Wis.)  153;  Cornell  v.  Hichens,  11   Wis. 
M'Connick  v.  Digby,  8  Blacld.  (Ind.)  99.  353. 

*  Bange  v.  Flint,  25  Wis.  544.  ''  Fisher  v.  Otis,  3  Chand.  (Wis.)  83. 

6  Crosby  v.  Roub,  16  Wis.  616;   An-  ^  Ferris  w.  Hendrickson,  1  Edw.  Ch.  (N. 

drews  v.  Hart,  17  Wis.  297;  Cornell  v.  Y.)  132. 
628 


EQUITABLE   ASSIGNMENTS. 


[§§  816,  817, 


signee  does  not  acquire  by  the  assignment  an  absolute  and  uncon- 
ditional right  to  the  benefit  of  the  agreement  ;  but  he  may  fore- 
close the  interest  of  the  assignor  under  the  bond,  and  a  sale  of 
such  interest  vests  in  the  purchaser  all  tlie  interest  which  the  as- 
signor had  by  means  of  it.^ 

816.  A  power  of  attorney  to  one  authorizing  him  to  enforce 
the  payment  of  a  mortgage  which  is  delivered  to  him  without 
assignment,  and  of  a  note  also  delivered  without  indorsement, 
operates  as  a  good  equitable  assignment,  and  the  mortgagee  can- 
not afterwards  make  a  valid  discharge  of  the  mortgage.^ 


817.  Assignment  of  debt  without  the  mortgage.  —  If  the 
note  or  other  debt  secured  by  the  mortgage  be  transferred  with- 
out any  formal  assignment  of  the  mortgage,  or  even  a  delivery 
of  it,  the  mortgage  in  equity  goes  with  the  debt,  unless  there  be 
an  agreement  to  the  contrary .^     The  mortgage  title,  if  it  does  not 

1  Wilson  V.  Fatout,  42  Ind.  52.  Walker,  11  Wis.  334  ;  Andrews  v.  Hart, 

2  Cutler    V.    Haven,    8    Pick.    (Mass.)     17  Wis.  297  ;  Martineau  v.  McCollum,  4 

Chand.  (Wis.)  153. 

Indiana  :  Burton  v.  Baxter,  7  Blackf. 
(Ind.)    297;    Blair    v.    Bass,   4   lb.   539; 


490. 

^  Connecticut  :   Lawrence   v.   Knap, 
1  Root,  248. 


Massachusetts  :  Wolcott  r.  Winches-     French  v.  Turner,  15  Ind.  59. 


ter,  15  Gray  (Mass.),  461. 


Kentucky  :  Miles  v.  Gray,  4  B.  ilon. 


Vermont  :  Keyes  v.  Wood,  21  Vt.  331  ;     417  ;  Burdett  v.  Clay,  8  lb.  287, 


Langdon  v.  Keith,  9  Vt.  299 ;  Pratt  v. 
Bank  of.  Bennington,  10  Vt.  293. 

New  York  :  Neilson  v.  Blight,  1  Johns. 
(N.  Y.)  Cas.  205;  Green  v.  Hart,  1  Johns. 
(N.  Y.)  590;  Evertson  v.  Booth,  19  Johns. 
(N.  Y.)  491  ;  Pattison  v.  Hull,  9  Cow.  (N. 
Y.)  747  ;  Barclay  v.  Blodget,  5  Cow.  (N. 
Y.)  202;  Langdon  v.  Buel,  9  Wend.  (N. 
Y.)  80;  Parmelee  v.  Dann,  23  Barb.  (N. 
Y.)  461. 

New   Hampshire:  Southerin  v.  Men- 


Alabama  :  Emanuel  v.  Hunt,  2  Ala. 
190;  CuUum  v.  Erwin,  4  Ala.  452 ;  Gra- 
ham I'.  Newman,  21  Ala.  497 ;  Center  v. 
P.  &  M.  Bank,  22  Ala.  743. 

California  :  Ord  v.  McKee,  5  Cal. 
515;  Bennett  v.  Solomon,  6  Cal.  134. 

Iowa  :  Bank  of  Indiana  v.  Anderson, 
14  Iowa,  544  ;  Crow  v.  Vance,  4  Iowa, 
434. 

Illinois  :  Pardee  v.  Lindley,  31  111. 
174;  Mapps  v.  Sharpe,  32  111.  13;  Lucas 


dum,  5  N.  H.  420  ;  Downer  v.  Button,  26     v.  Harris,  20  111.  165  ;•  Vansant  v.  AUmon, 
N.  H.  338 ;  Blake  v.  Williams,  36   N.  H.     23  111.  30. 


39;  Rigney  v.  Lovejoy,  13  N.  H.  247; 
Smith  V.  Moore,  1 1  N.  H.  55  ;  Page  v. 
Pierce,  26  N.  H.  317. 

Mississippi  ;  Holmes  v.  McGinty,  44 
Miss.  94;  Dick  v.  Mawry,  17  Miss.  448. 

Wisconsin  :  Croft  v.  Bunster,  9  Wis. 
503;  Rice  v.  Cribh,  12  Wis.  179;  Fisher 
V.  Otis,   3   Chand.  (Wis.)    83  ;    Blunt   v. 


Pennsylvania  :  Partridge  i\  Partridge, 
38  Pa.  St.  78;  Danley  v.  Hays,  17  Serg.  & 
R.  (Pa.)  400. 

Louisiana:  Scott  v.  Turner,  15  La. 
Ann.  346. 

Michigan  :  Martin  v.  McReynolds,  6 
Mich.  70. 

Missouri  :  Laberge  v.  Chauvin,  2  Mo. 

629 


§  817.]  ASSIGNMENT   OF   MORTGAGES. 

legally  pass  to  the  assignee  by  such  assignment,  as  some  author- 
ities hold,  remains  in  the  mortgagee  as  trustee  for  the  holder  of 
the  debt,  even  though  the  latter  did  not  know  at  the  time  of 
the  transfer  of  the  existence  of  the  security.  Whenever  it  comes 
to  his  knowledge  he  may  affirm  the  trust  and  enforce  the  security. 
If  the  mortgagor  after  notice  of  such  an  assignment  pay  the  debt 
to  the  mortgagee,  he  does  it  in  his  own  wrong  and  must  suffer  the 
loss. 

Such  an  assignment  has  generally,  however,  no  effect  upon  the 
legal  estate.  It  is  true,  as  has  already  been  noticed  at  length  in 
the  first  chapter,  that  by  legislative  enactment,  or  by  judicial  con- 
struction in  several  states,  the  legal  character  of  a  mortgage  at 
common  law  no  longer  exists ;  but  generally  the  distinction  is 
kept  up,  and  "  great  convenience,  if  not  safety,"  is  found  in  it.^ 
"  The  true  character  of  a  mortgage,"  says  Chief  Justice  Shaw,^ 
"  is  the  pledge  of  real  estate  to  secure  the  payment  of  money, 
or  the  performance  of  some  other  obligation.  Its  object,  from  its 
creation  to  its  redemption  or  foreclosure,  is  that  of  a  pledge  for 
such  debt  or  duty.  It  may,  in  many  aspects,  be  called  a  real  lien, 
a  chattel  interest,  a  chose  in  action,  and  quasi  personal.  But  as 
it  binds  land,  and  may  lay  the  foundation  of  a  title  to  real  es- 
tate, it  assumes  in  many  respects  the  character  of  a  land  title. 
It  is  so  in  its  origin,  by  deed ;  in  the  mode  of  giving  it  notoriety, 
by  registration  ;  in  its  transfer,  by  deed  of  assignment ;  its  dis- 
charge, by  deed  of  release  ;  and  in  the  mortgagee's  remedy,  by 
writ  of  entry  against  the  mortgagor,  or  other  person  in  posses- 
sion under  him." 

But  whatever  may  be  the  equitable  interest  of  an  assignee  hav- 
ing only  an  equitable  assignment  of  a  mortgage,  as  for  instance 
by  the  delivery  of  the  mortgage  rote  or  bond  without  a  formal 
assignment  of  the  mortgage,  he  has  no  legal  interest,  and  cannot 
sue  in  scire  facias,'^  or  maintain  a  writ  of  ejectment,*  or  a  writ  of 
entry,^  in  his  own   name.     Such  an  assignee  at  most  is  only   a 

179  ;  Chappell  v.  Allen,  38  Mo.  213  ;  Pot-  Maine  :   Vose  v.  Handy,  2  Greenl.  322. 

ter  V.  Stevens,  40  Mo.  229.  ^  Chief  Justice  Shaw,  in  Young  v.  Miller, 

NoKTH    Carolina:    Hyman   v.  Deve-  6  Gray  (Mass.),  152. 

reux,  63  N.  C.  624.  2  gee  Young  v.  Miller,  supra. 

Ohio  :  Paine  v.  French,  4  Ohio,  318.  3  Partridge  v.  Partridge,  38  Pa.  St.  78. 

Texas:  Perkins w.  Sterne,  23  Tex.  561.  *  Cottrell  v.  Adams,  2  Biss.  351  ;  Ed- 

SouTH    Carolina  :     Muller   v.   Wad-  gerton  v.  Young,  43  111.  464. 

lington,  5  S.  C.  342,  and  cases  cited.  ^  Young  v.  Miller,  6  Gray  (Mass.),  152; 

630 


EQUITABLE   ASSIGNMENTS.  [§  818. 

cestui  que  trust  having  an  equitable  interest  in  the  real  estate,  the 
legal  title  to  which  is  held  by  another,  either  as  an  actual  or  re- 
sulting trust.  He  has  no  legal  interest  in  the  land,  and  can  main- 
tain no  action  at  law  in  respect  to  it.  His  rights  are  equitable, 
and  must  be  pursued  in  a  court  of  equity.  He  may,  however, 
use  the  name  of  the  legal  holder  of  the  mortgage  to  enforce  the 
legal  rights  that  appertain  to  the  mortgage.^ 

818.  Legal  interest  of  the  mortgagee  after  assignment  of 
the  debt.  —  As  has  already  been  stated  the  mere  transfer  of  the 
debt  does  not  at  common  law  carry  with  it  the  mortgage  security 
so  far  as  to  vest  the  legal  interest  in  the  purchaser ;  but  only 
gives  him  an  equitable  interest,  which  must  be  enforced  in  the 
name  of  the  person  who  still  holds  the  legal  title.  On  the  other 
hand,  if  the  mortgage  debt  has  been  paid,  a  mere  naked  mortgage 
title  does  not  avail  the  mortgagee  so  as  to  enable  him  to  maintain 
an  action  upon  the  mortgage.  He  has  a  mere  naked  seisin  with- 
out any  beneficial  interest.  And  if  the  debt  has  not  been  paid, 
but  has  been  transferred  to  another  person,  the  beneficial  interest 
no  longer  exists  in  the  mortgagee,  but  in  the  assignee  of  the  debt, 
who  must  however  enforce  his  security  in  the  name  of  the  mort- 
gagee. A  mortgage  is  available  as  a  security  only,  as  it  is  con- 
nected in  some  way  with  the  debt  or  duty  which  it  secures.  To 
one  who  has  not  the  debt,  it  is  of  no  value  as  property,  as  it  could 
at  most  be  only  resorted  to  as  a  trust  for  the  benefit  of  the  holder 
of  the  note. 2 

When  the  debt  and  the  legal  title  to  the  mortgaged  estate  are 
separated  in  this  way,  if  the  holder  of  the  latter  will  not  volunta- 
rily use  this  title  for  the  benefit  of  the  person  entitled  to  the  use 
of  it,  it  may  be  necessary  to  resort  to  a  bill  in  equity  to  charge 
the  party  who  has  the  legal  title  as  a  trustee  for  the  holder  of 
the  debt ;  ^  whereupon  he  will  be  compelled  either  to  maintain 
a  suit  at  law,  or  to  foreclose  for  the  benefit  of  the  assignee,  or  to 
assign  the  mortgage  to  the  holder  of  the  debt.*  Courts  of  law 
will  enforce  this  equitable  principle  so  far  as  they  are  able. 

Bryant  v.  Damon,  lb.  564;  Warden  v.  ^  Sanger  r.  Bancroft,  12  Gray  (Mass.), 
Adams,  15  Mass.  232;  Dwinel  v.  Parley,     365,  per  Dewey,  J. 

32  Me.  197;  Gould  v.  Newman,  6  Mass.  »  ^er  Dewey,  J.,  in  Wolcott  v.  Win- 
239.  Chester,  15  Gray  (Mass.),  461. 

1  Graham  v.  Newman,  21  Ala.  497.  *  Crane  v.  March,  4  Pick.  (Mass.)  131. 

631 


§§  819,  820.]  ASSIGNMENT   OF   MORTGAGES. 

819.  The  law  implies  an  intention  in  such  case  that  the 
mortgagee  shall  hold  the  mortgage  title  in  trust.  —  If  the  only- 
note  or  bond  secured  by  a  mortgage  be  transferred  without  a 
formal  assignment  of  the  mortgage,  and  there  is  nothing  to  indi- 
cate an  intention  of  the  parties  that  the  mortgage  security  is  not 
to  go  with  it,  the  law  implies  the  intention  that  the  mortgagee 
shall  hold  the  title  in  trust  for  the  indorsee,  f9r  except  as  a  se- 
curity to  him  the  barren  fee  in  the  mortgagee  is  useless.^ 

But  the  question  has  been  raised  whether  in  case  one  of  two 
notes  be  indorsed  without  any  expression  of  intent,  any  resulting 
trust  will  be  implied  in  favor  of  the  indorsee,  as  the  mortgagee 
still  has  a  beneficial  interest  in  the  mortgage  as  security  for  his 
remaining  note.^ 

820.  As  to  whom  an  assignment  by  transfer  of  the  debt 
only  is  effectual.  —  The  mortgage  passes  as  an  incident  to  the 
note.  No  assignment  of  the  mortgage  is  necessary  as  between 
the  parties,  or  as  against  the  mortgagor  or  others  having  actual  no- 
tice of  the  transfer  of  the  notes.  The  mortaao-or  is  bound  to 
take  notice  of  such  an  assignment  upon  the  discharge  of  his  debt, 
because  proper  diligence  on  his  part  demands  that  he  should  re- 
quire the  production  of  the  notes  before  paying.^ 

But  if  the  mortgagee,  while  the  notes  are  in  the  hands  of  the 
assignee,  cancels  the  mortgage  on  receiving  payment  from  the 
mortgagor,  wlio  then  makes  conveyance  or  a  new  mortgage 
to  another  person,  who  acts  in  good  faith  and  in  ignorance  of 
the  fact  that  the  original  mortgage  had  not  been  paid  to  the 
proper  party,  such  purchaser  or  subsequent  mortgagee  has  the 
better  title.^  Such  subsequent  purchaser  or  mortgagee  is  not 
bound  to  take  notice  of  an  assignment  by  transfer  of  the  notes 
alone.  The  assignee  of  the  notes  can  easily  protect  himself  by 
requiring  an  assignment  of  the  mortgage  and  recording  it,  and 
thus  give  notice  of  his  rights ;  and  if  he  omits  to  do  this,  he 
should  be  the  party  to  suffer  for  the  negligence. 

1  Young  V.  Miller,  6  Gray  (Mass.),  152  ;  ^  Swan  v.  Yaple,  35  Iowa,  248 ;  Bremer 
Crane  y.  March,  4  Pick.  (Mass.)  131,136;  Co.  Bank  v.  Eastman,  34  Iowa,  392; 
Wolcott  V.  Winchester,  15  Gray  (Mass.),  Crow  v.  Vance,  4  Iowa,  434  ;  Bank  of  the 
461,  465.  State  of  lud.  v.  Anderson,  14  Iowa,  544; 

2  Per  Shaw,  C.  J.,  in  Young  v.  Miller,  Pope  v.  Jacobus,  10  Iowa,  262. 

6  Gray  (Mass.),  152  ;  per  Dewey,  Justice,        *  Bank  of  the  Stateof  Ind.  v.  Anderson, 
in  Wolcott  V.  Winchester,  supra.  14  Iowa,  544. 

632 


EQUITABLE   ASSIGNMENTS.  [§  821. 

In  a  recent  case  in  Illinois,^  Mr.  Justice  Lawrence,  delivering 
the  opinion  of  the  court,  clearly  illustrates  some  phases  of  this 
subject.  "  If  a  purchaser  finds  upon  record  a  mortgage,  and  a  sub- 
sequent deed  from  the  mortgagee  to  the  mortgagor,  it  is  prob- 
able that  he  would  be  protected  under  our  registry  laws  against 
the  claim  of  an  assignee  of  the  note  secured  by  the  mortgage  in  the 
absence  of  notice  of  sucli  assignment.  Although  the  assignment 
of  a  note  secured  by  mortgage  carries  with  it  the  equitable  in- 
terest in  the  mortgage,  it  carries  only  an  equitable  interest ;  and 
if  the  assignee  desires  to  protect  himself  against  all  peril  from  a 
release  of  the  legal  title  by  the  mortgagee  to  the  mortgagor,  and  a 
subsequent  conveyance  by  the  mortgagor  to  a  third  person  with- 
out notice,  it  would  probably  be  held,  that  the  assignee  of  the 
note  should  also  take  and  record  a  deed  from  the  mortgagee  for 
the  mortgaged  premises.  But  admitting  that  such  would  be  the 
rule  when  the  mortgagee  reconveys  to  the  mortgagor,  it  by  no 
means  follows  that  the  same  rule  should  be  applied  to  cases  where 
the  mortgagor  conveys  to  the  mortgagee.  The  conveyance  in  the 
former  case  can  be  understood  only  as  manifesting  an  intention 
on  the  part  of  the  mortgagee  to  release  the  lien  of  the  mortgage. 
It  can  be  made  for  no  other  purpose.  A  mortgagor,  procuring  a 
release  of  a  lien  created  by  himself  against  his  own  land,  would 
be  presumed  to  have  procured  the  release  with  the  express  intent 
to  extinguish  the  lien,  and  third  persons  would  be  authorized  to 
act  upon  that  presumption.  But  a  mortgagee  may  procure  a 
conveyance  from  the  mortgagor  without  intending  to  merge  the 
lien  of  his  mortgage.  It  may  be  of  great  importance  to  him  to  be 
permitted,  for  the  protection  of  his  title,  to  keep  his  mortgage 
alive,  and  to  assert  it  in  a  court  of  equity,  if  the  necessity  shall 
arise."'  In  this  case  it  was  held  that  wliere  the  mortgagee  assigned 
a  note  secured  by  mortgage,  and  subsequently  procured  a  convey- 
ance in  fee  of  the  premises  from  the  mortgagor  to  himself,  and 
the  land  was  then  levied  upon  and  sold  as  the  property  of  the 
mortgagee  to  a  third  party,  the  only  interest  acquired  by  the  pur- 
chaser was  the  equity  of  redemption.^ 

821.  Assignment  of  part  of  the  mortgage  debt,  —  There  is 
no  doubt   that  where   a  mortgage    is  conditioned  to    secure    the 

1  Ed<;erton  v.  Young,  43  111.  464.  Campbell  v.  Carter,  14  111.  289  ;  Jarvis  v. 

2  Edgerton    i-.    Young,    43    111.    464;     Friiik,  14  111.  398. 

633 


§  822.]  ASSIGNMENT   OF   MORTGAGES. 

payment  of  several  notes,  the  mortgagee  may,  if  he  choose,  assign 
the  whole  mortgage  interest  as  security  for  a  part  of  the  notes 
transferred  at  the  same  time,  leaving  no  security  in  the  land  for 
a  subsequent  assignee  of  the  otlier  notes.^  But  if  the  mortgagee 
in  terms  assign  only  such  part  of  the  mortgage  security  as  corre- 
sponds to  the  notes  transferred,  then  the  holder  of  the  remaining 
notes  is  entitled  to  the  remainder  of  the  securit3^2  An  assignment 
of  a  part  of  the  mortgage  notes,  in  the  absence  of  any  contract 
to  the  contrary,  is  held  to  operate  as  an  assignment  of  a  -pro  rata 
interest  in  the  mortgage.^  The  assignee  of  the  mortgage  and 
part  of  the  notes  holds  the  security  in  trust  for  the  benefit  fro 
rata  of  one  who  had  previously  taken  the  other  notes. ^ 

The  same  principle  applies  wlien  the  debt  secured  is  repre- 
sented b}^  bonds  of  a  railroad  company  or  other  corporation.  The 
security  attaches  to  the  bonds  in  whosesoever  hands  they  may  be. 
Moreover,  an  interest  coupon  detached  from  the  bond  and  in  the 
hands  of  another  person  is  still  entitled  to  a  proportionate  share 
of  the  mortgaged  security.^ 

If  a  mortgage  for  $2,750  be  assigned  "  to  the  extent  of  $1,500," 
being  the  amount  of  three  of  the  mortgage  notes,  the  mortgagee 
holding  two  other  notes  under  an  agreement  that  his  security 
should  not  be  impaired  as  to  them,  the  assignee  becomes  a  ten- 
ant in  common  with  the  mortgagee,  each  being  owner  under  the 
mortgage  of  such  part  of  the  estate  as  the  debt  due  to  each  bears 
to  the  whole  mortgage  debt.  The  assignee  in  such  case  cannot 
foreclose  the  entire  mortgage,  but  only  to  the  extent  of  his 
interest.^ 

822.  When  assignee  of  one  note  has  priority.  —  A  mort- 
gagee holding  two  or  more  notes  secured  by  one  mortgage  can 
transfer  the  mortgage  and  one  note,  so  as  to  give  that  note  pri- 
ority in  satisfaction  out  of  the  mortgaged  property  ; "  and  an  in- 

1  Warden  v.  Adams,  15  Mass.  233;  ^  Lane  v.  Davis,  14  Allen  (Mass.), 
Langdon  v.  Keith,  9  Vt.  300.  225. 

2  Wright  !^  Parker,  2  Aik.  (Vt.)  212.  ^  Wright    v.    Parker,   2    Aiken,    212; 

3  Keyes  v.  Wood,  21  Vt.  331  ;  Cooper  Cooper  i;.  Ulmann,  Walk.  (Mich.)  Ch.251  ; 
V.  Ulmann,  Walk.  (Mich.)  Ch.  251  ;  Don-  Bank  of  England  v.  Tarleton,  28  Miss, 
ley  V.  Hays,  17  S.  &  R.  (Pa.)  400.  173  ;  Walker  v.  Dement,  42  111.  272. 

<  Beldingv.  Mnnly,  21  Vt.  550;  Moore         In  Langdon   v.  Keith,    9  Vt.    299,   Mr. 

V.  Ware,  38  Me.  496.  Chancellor  Collamer  adopts  the  views  and 

5  Miller  v.  Rutland,  &c.  R.  Co.  40  Vt.  39.     language  of  the  court  in  Wright  v.  Parker, 

634 


EQUITABLE   ASSIGNMENTS.  [§  822. 

dorsement  of  one  note,  with  an  assignment  of  the  mortgage,  is 
sufficient,  in  the  absence  of  all  circumstances  indicating  a  contrary 
intention,  to  give  to  the  holder  of  such  note  priority. 

The  mortgagee  may  by  agreement  fix  the  rights  of  the  holders 
of  the  several  notes  to  the  mortgage  security,  and  such  an  agree- 
ment may  be  implied  from  the  circumstances  of  the  transfer.^ 
An  assignment  of  the  mortgage  with  one  note  may  imply  a 
priority  of  payment  over  any  notes  retained  and  owned  by  the 
mortgagee,  and  any  subsequent  indorsement  of  the  other  notes 
would  not  then  destroy  the  priority  of  the  note  transferred  with 
the  mortgage.2 

But  when  there  is  no  such  implication  of  an  intention  to  give 
priority  to  the  note  assigned,  the  indorsement  and  delivery  of  it 
carries  with  it  a  pro  rata  portion  of  the  security  and  nothing 
more.     This  is  the  generally  received  doctrine.^ 

When  successive  assignments  of  several  notes  or  bonds  secured 
by  a  mortgage  are  made  without  an  assignment  of  mortgage,  the 
rule,  "  Qui  prior  in  tempore^  potior  est  in  jure^""  has  no  applica- 
tion. This  is  applicable  when  there  are  successive  charges  upon 
the  same  property  ;  but  as  between  several  obligations  secured  by 
the  same  mortgage,  much  difficulty  might  result  from  the  rule  on 
account  of  the  uncertainty  and  fraud  that  might  attend  an  inquiry 
into  the  times  of  the  several  assignments.  And  yet  in  several 
states  the  rule  has  been  adopted  that  the  note  first  falling  due  has 

supra.  "  If  the  mortgagee  choose  to  as-  note  does  not  necessarily  give  that  note 
sign  all  his  interest  in  the  mortgaged  priority,  but  operates  only  as  an  assign- 
premises,  to  secure  but  a  part  of  the  notes  ment  of  the  mortgage  pro  tanto.  Steven- 
therein,  assigned  by  him,  he  has  a  right  to  son  v.  Black,  Saxt.  (N.  J.)  338  ;  Piige  v. 
do  so,  and  in  such  case,  no  interest  in  the  Pierce,  26  N.  H.  317  ;  Bctz  v.  Heebner,  1 
premises  could  remain  in  him."  Penn.  280;  Ewing  v.  Arthur,  1  Humph. 

1  Grattan  v.  Wiggins,   23  Cal.  16,  30,  (Tenn.)  .537. 

and    cases    cited ;    Mechanics'    Bank    v.  ^  Noyes    v.  White,   9    Minn.    640 ;  see. 

Bank  of  Niagara,  9  Wend.  (N.  Y.)  410.  however,  Henderson  v.  Herrod,  18  Miss. 

The  assignee  of  one  note,  who  also  has  631. 

an  assignment  of  the  mortgage,  may  per-  ^  Phclan  v.  Olney,  6  Cal.  478  ;  Bclding 

haps  stand  upon  another  principle  of  law,  v.  Manly,  21  Vt.  .550  ;  Kcyes  v.  Wood,  21 

namely,   that   when   two   or    more    have  "Vt.  331  ;  Page  v.  Pierce,  26  N.   H.  317  ; 

equal  claims  inequity,  and  one  has  a  legal  John.son  v.  Brown,  31  N.  H.  405;  Moore 

title,  the  legal   title   shall   prevail.     East-  v.  Ware,  38  Me.  496;  Stevenson  v.  Black, 

man    r.  Foster,   8  Met.    (Mass.)    19,   per  (Saxt.)  1  N.  J.  Eq.  338  ;  Swartz  v.  Leist,  13 

Chief  Justice  Shaw.  Ohio   St.  419;  Herring  v.  Woodhull,  29 

According  to  other  authorities,  however.  111.  92  ;  Donley  v.  Hays,  17  S.  &  R.  (Pa.) 

the  assignment  of  the  mortgage  with  one  400;  Hancock's  Appeal,  34  Pa.  St.  155. 

635 


§  823.]  ASSIGNMENT   OF   MORTGAGES. 

precedence  in  the  application  of  the  security,  and  is  to  be  first 
satisfied.^ 

In  the  beginning,  and  as  between  the  original  parties,  the  mort- 
gage stands  as  a  security  for  all  the  mortgage  notes  equally.  If 
the  mortgagee  assigns  one  of  the  notes,  retaining  the  others  to- 
gether with  the  mortgage,  the  mortgage  will  stand  as  security  for 
all  the  notes  pro  rata  ;  and  this  is  the  case,  without  reference  to 
the  time  they  respectively  become  due,^  If  there  be  two  mort- 
gage notes,  and  upon  the  assignment  of  the  mortgage  one  of  them 
is  indorsed  without  recourse,  and  the  other  is  indorsed  in  blank, 
by  the  mortgagee  upon  foreclosure,  the  notes  are  entitled  to  the 
benefit  of  the  mortgage  security  pro  rata,  and  a  decree  placing 
the  deficiency  altogether  upon  the  indorsed  note,  and  requiring 
payment  of  it  from  the  mortgagee,  is  erroneous.^ 

An  assignment  of  a  mortgage  so  far  as  it  secures  the  payment 
of  the  second  note  named  therein,  together  with  the  second  note 
with  a  covenant  of  warranty  against  all  persons  cliiiming  under 
the  assignor,  transfers  the  mortgage  as  security,  first  for  the  pay- 
ment of  the  note  assigned  with  it,  and  then  in  trust  to  secure  the 
payment  of  the  other  note  ;  and  if  such  assignment  is  recorded 
it  chai-ges  the  estate  in  the  hands  of  subsequent  purchasers  of  the 
mortgage  with  such  trust.* 

6.    Construction  and  Effect  of  Assignments.  ' 

823.  Law  of  place.  —  A  mortgage  of  course  takes  effect  by 
virtue  of  the  law  of  the  place  where  the  land  is  situated.  But 
this  rule  does  not  extend  to  an  equitable  transfer  of  the  mortgage 
and  of  the  debt  to  which  it  is  incident.  An  assignment  of  the 
mortgage  is  a  new  contract  and  passes  a  chattel  interest,  and  the 
rights  of  the  parties  are  governed  by  the  law  of  the  place  where 
it  is  executed."'^ 


1  Stanley     v.    Beattj,     4      Ind.     134  ;  "  See  English  v.  Carney,  25  Mich.  178. 

Hough    V.    Osborne,    7    Ind.    140;    State  3  English  y.  Carney,  25  Mich.  178. 

Bank   v.  Tweedy,  8    Blackf.    (Ind.)  447  ;  *  Bryant   v.   Damon,   6    Gray    (Mass), 

-Wood   V.    Trask,    7    Wis.    566 ;    Grapen-  564.     See  Norton  v.  Stone,   8  Paige   (N. 

gether  v.  Fejervary,  9  Iowa,  163;  Rankin  Y.),  222. 

V.  Major,    lb.    297  ;    Sangster    v.   Love,  ^  Dundas   v.  Bowler,  3   McLean,  397 ; 

11    Iowa,  580  ;  Hinds  v.  Mooers,  lb.  211  ;  Hoyt  v.  Thompson,  19  N.  Y.  207;  Bank 

Culliim   y.  Erwin,  4  Ala.  452;  M'Vay  y.  of    England   v.  Tarleton,   23    Miss.    173; 

Bloodgood,  9  Port.  (Ala.)   547.  Murrell  v.  Jones,  40  Miss.  565,  583. 
636 


CONSTRUCTION   AND    EFFECT    OF   ASSIGNMENTS.  [§  824. 

824.  An  ordinary  assignment  passes  nothing  beyond  the 
mortgage  title.  —  The  words  of  grant  in  an  ordinary  deed  of  as- 
signment of  a  mortgage  do  not  operate  by  way  of  covenant  or 
estoppel  beyond  the  description  of  the  thing  assigned  ;  and  they 
cannot  have  the  effect  to  convey  or  extinguish  any  other  right  or 
interest  the  assignor  has  in  the  property,  as  for  instance  a  right 
of  entry  for  breach  of  a  condition  subsequent.  Neither  does  an 
assignment  in  ordinary  form  without  covenants  of  warranty  estop 
the  assignor  to  set  up  an  after  acquired  title  ;  ^  nor  does  it  pass  a 
title  to  a  portion  of  the  premises  which  the  assignor  has  previ- 
ously acquired  by  a  purchase  under  a  foreclosure  of  a  prior  mort- 
gage of  that  portion.^  By  the  foreclosure  sale  the  assignor,  who 
has  become  absolute  owner  of  a  part  of  the  premises  free  from 
any  right  of  redemption,  no  longer  holds  that  as  mortgagee.  The 
assignment  conveys  a  title  in  mortgage,  and  not  an  absolute  title 
in  fee.  These  are  distinct  titles.  The  assignment  does  not  touch 
the  title  which  the  assignor  holds  absolutely. 

Where  one  conveyed  land  upon  the  express  condition  that  the 
grantee  should  within  a  certain  time  erect  certain  buildings  on  it, 
and  took  back  a  mortgage  of  it  to  secure  the  payment  of  })art  of 
the  purchase  money,  and  then  by  assignment  in  the  usual  form  sold 
and  conveyed  "  said  mortgage  deed,  the  real  estate  thereby  con- 
veyed, and  the  promissory  note,  debt,  and  claim  thereby  secured," 
it  was  held  that  only  the  mortgage  title  passed  to  the  assignee  of 
the  mortgage,  subject  to  be  defeated  by  breach  of  the  condition  of 
the  original  deed.^  "  The  real  estate  thereby  conveyed,"  said  Mr. 
Justice  Gray,  "  was  not  an  absolute  title  in  fee,  but  a  title  in  mort- 
gage, and,  in  this  case,  a  title  subject  to  be  defeated  by  the  mort- 
gagors' breach  of  the  condition  subsequent  in  the  deed  to  them. 
The  words  of  grant  in  the  assignment  cannot  operate  by  way  of 
covenant  or  estoppel  beyond  the  description  of  the  thing  granted 
and  assigned." 

Moreover,  the  assignment  of  a  mortgage  of  premises  upon 
which  the  mortgagee  has  a  right  of  entry  for  a  breach  of  a  con- 
dition subsequent,  as  for  instance  a  condition  for  the   payment  of 

1  Weed  Sewing  Machine  Co.  v.  Emer-  mortgage  deed,  the  real  estate  thereby 
son,  115  Mass.  554.  conveyed,  and  the  promissory  note,  debt, 

2  Durgiu   V.   Busfield,   114   Mass.  492.     and  claim  thereby  secured." 

The  words  of  the  assignment  were,  "  sell,         ^  Merritt  v.  Harris,  102  Mass.  326,  and 
assign,  transfer,  set  over,  and  convey  said     cases  cited. 

637 


§§  825,  826.]  ASSIGNMENT   OF   MORTGAGES. 

prior  mortgages  upon  the  property,  does  not  convey  or  extinguish 
the  right  of  entry ,i  although  an  absolute  alienation  in  fee  before 
an  entry  for  tlie  breach  would  extinguish  the  right  or  possibility 
of  reverter  ;  ^  for,  as  Coke  expresses  it,^  "  Nothing  in  action,  entry, 
or  reentry  can  be  granted  over ;  "  and  the  reason  he  gives  for  the 
rule  is  "  for  avoiding  of  maintenance,  suppressing  of  rights,  and 
stirring  up  of  suits,"  which  would  happen  if  men  were  permitted 
"  to  grant  before  they  be  in  possession." 

In  New  York,  however,  it  is  held  that  one  assigning  a  bond 
and  mortgage  impliedly  warrants  their  validity,  and  is  liable  for 
a  breach  of  such  implied  warranty.^ 

A  warranty  of  the  validity  of  a  mortgage  is  a  warranty,  in 
effect,  that  the  bond  as  well  as  the  mortgage  is  valid  ;  for  if  the 
bond  be  invalid,  the  mortgage  which  is  dependent  upon  the  debt  is 
invalid  also.^ 

825.  But  a  mortgagor  cannot  set  up  an  after  acquired  title 
as  against  his  covenants  of  warranty.  —  A  mortgagor  who  has 
bought  land  and  given  a  mortgage  for  the  purchase  money  con- 
taining covenants  of  warranty  cannot  set  up  a  title  adversely  to 
his  mortgage  in  the  hands  of  an  assignee,  although  he  acquire  the 
title  under  a  sale  for  taxes  assessed  upon  the  land  before  he 
bought  it.  Such  title  enures  instantly  to  the  benefit  of  the  as- 
signee.^ 

826.  When  an  equitable  assignment  carries  a  power  of  sale. 
In  those  states  where  a  mortgage  is  regarded  as  merely  a  lien 
and  not  as  an  estate  in  the  land,  and  an  assignment  of  the  note 
carries  with  it  as  an  incident  the  mortgage,  which  may  be  en- 
forced in  the  name  of  the  assignee,  an  indorsement  and  delivery 
of  the  note  without  a  formal  assignment  of  the  mortgage  vests 
the  power  of  sale  in  the  assignee.  The  power  passes  from  the 
mortgagee,  and  can  no  longer  be  executed  by  him.''     But  in  lUi- 

1  Hancock  v.  Carlton,  6  Gray  (Mass.),  ^  Co.  Litt.  214  a;  and  see  Co.  Litt. 
39 ;    Richardson  v.   Cambridge,   2    Allen     369  a. 

(Mass.),  118 ;  Merritt  v.  Harris,  102  Mass.         *  Ross  v.  Terry,  63  N.  Y.  613. 
326.  5  Ross  V.  Terry,  63  N.  Y.  613. 

2  Rice   V.    Boston  &  Worcester   R.  Co.         ^  Gardiner  v.  Gerrish,  23  Me.  46. 

12  Allen  (Mass.),  141,  and  cases  cited.  t  oids  v.  Cummings,  31  III.  188;  Par- 


638 


dee  V.  Lindley,  lb.  174. 


CONSTRUCTION   AND   EFFECT    OF   ASSIGNMENTS.  [§  827. 

nois  it  is  held  that  an  assignment  of  the  mortgage  without  an 
indorsement  of  the  note,  inasmuch  as  the  mortgage  is  not  assign- 
able, either  at  common  law  or  by  statute,  in  that  state,  will  not 
pass  the  power  of  sale  to  the  assignee,  but  it  will  still  remain  in 
the  mortgagee,  who  alone  can  exercise  it.^ 

827.  Assignment  as  collateral  security.  —  An  assignment  of 
a  mortgage  may  in  equity  be  shown  to  be  in  fact  collateral  se- 
curity for  a  loan,  though  it  be  absolute  in  form.  Such  evidence 
does  not  vary  or  contradict  the  writing,  but  establishes  a  limita- 
tion inherent  in  the  transaction,  and  a  court  of  equity  will  re- 
strict it  accordingly .2  When  the  mortgage  secures  a  negotiable 
note,  the  assignee  who  has  taken  it  as  collateral  security,  by  an 
absolute  assignment  in  the  usual  form,  though  for  only  a  small  part 
of  the  amount  secured  by  the  mortgage,  may  himself  assign  it  to 
another  ;  and  this  second  assignee,  if  he  has  taken  it  before  it  was 
due  for  full  value,  without  notice  of  the  limited  interest  of  the 
assignor,  may  enforce  it  for  the  full  amount.  But  if  the  debt 
secured  be  a  bond  or  other  non-negotiable  instrument,  the  second 
assignee  would  in  such  case  acquire  only  the  right  and  interest  of 
the  first  assignee :  ^  and  the  assignor  who  pledged  the  mortgage 
can  redeem  upon  paying  the  amount  of  the  loan  for  which  it  was 
pledged,  in  wliosesoever  hands  he  may  find  it."^ 

If  such  assignee  foreclose  the  mortgage  and  at  the  sale  bids  it  in 
for  a  sum  less  than  the  amount  of  the  debt  which  the  assignment 
was  made  to  secure,  inasmuch  as  he  holds  them  ortgage  after  sat- 
isfying his  own  claim  as  trustee  for  his  assignor,  he  is  not  allowed 
to  purchase  the  premises  for  his  own  benefit,  but  they  are  in  his 
hands  subject  to  be  redeemed  by  his  cestui  que  trusts  The  effect 
of  the  foreclosure  in  such  case  is  simply  to  bar  the  equity  of  the 
mortgagor  and  his  grantees  in  the  land,  and  it  has  no  operation 
upon  the  rights  of  the  assignor  and  his  assignee  holding  it  as  col- 
lateral security  for  an  amount  less  than  the  mortgage  debt.  The 
assignee  holds  the  mortgage  only  as  security  for  the  debt  due 
him,  and  as  trustee  for  his  assignor  for  any  surplus.     The  equi- 

1  Hamilton  v.  Lubukee,  51  111.  415.  ♦  Sweet  v.  Van  Wyck,  3  Barb.  (N.  Y.) 

2  Pond  v.  Eddy,  113  Mass.  149.  Ch.  647. 

8  Bush  V.  Lathrop,  22  N.  Y.  535  ;  ^  jjoyt  v.  Marteuse,  16  N.  Y.  231  ;  and 
United  States  r.  Sturges,  1  Paine,  525.         see  Slee  v.  Manhattan  Co.  1  Paige  (N. 

Y.),48. 

639 


§  828.]  ASSIGNMENT   OF   MORTGAGES. 

table  rule,  therefore,  which  forbids  a  trustee  or  person  acting  in  a 
fiduciary  capacity  from  speculating  upon  the  subject  of  the  trust, 
applies  as  well  after  the  foreclosure  and  sale  as  before. 

If  a  mortgagee  in  possession  assign  his  mortgage  as  collateral 
security  for  a  debt,  this  is  an  admission,  which  the  mortgagor 
may  avail  himself  of,  that  it  is  a  subsisting  security.^ 

When  a  mortgage  fraudulent  in  its  inception,  as  against  the 
mortgagor's  creditors,  is  assigned  to  one  who  has  knowledge  of 
the  fraud,  he  stands  in  no  better  situation  to  enforce  it  or  to  claim 
protection  under  it  than  a  party  to  the  original  fraudulent  trans- 
action.2  The  law  will  lend  him  no  aid  whatever  for  either  pur- 
pose. The  burden,  however,  of  proving  that  the  assignee  took 
the  mortgage  with  notice,  or  that  he  is  not  a  ho7id  fide  purchaser, 
is  on  the  party  who  sets  up  the  fraud. ^ 

The  title  to  a  mortgage  that  was  fraudulent  in  its  inception 
as  against  the  mortgagor's  creditors  becomes  valid  in  the  hands  of 
one  who  has  purchased  it  in  good  faith  without  notice  of  the 
fraud.  The  contrary  of  this  was  asserted  in  some  of  the  earlier 
cases  in  this  country,  upon  a  distinction  taken  between  a  convey- 
ance fraudulent  as  against  creditors  and  one  fraudulent  against 
subsequent  purchasers ;  the  former  being  held  absolutely  void, 
and  the  latter  voidable  only.  But  this  distinction  is  rejected  by 
all  the  later  authorities,  and  the  conveyance  in  both*  cases  held  to 
be  voidable  only.* 

828.  Assignment  induced  by  fraudulent  representations.  — 
If  the  holder  of  a  mortgage  made  by  a  third  person  induces  an- 
other to  take  an  assignment  of  it  by  representations  as  to  the 
responsibility  of  the  mortgagor  and  the  value  of  the  security, 
which  are  false  in  fact,  though  honestly  made  in  the  belief  that 
they  are  true,  and  they  are  relied  upon  by  the  purchaser,  they  are 
in  legal  effect  fraudulent ;  ^  and  the  assignee  may  reclaim  the 
consideration.     He  must  have  used,  however,  reasonable  care  in 

1  Borst  V.  Boyd,  3  Sandf.  (N.  Y.)  Ch.  *  See  Danbury  v.  Robinson,  supra, 
501 ;  Hansard  v.  Hardy,  18  Ves.  455,  459.  where  the  earlier  cases  are  cited  and  com- 

2  Danbury  v.  Robinson,  14  N.  J.  Eq.  mented  upon ;  and  see  Oriental  Bank  v. 
213;    Chamberlain   v.    Barnes,   26   Barb.  Haskins,  3  Met.  (Mass.)  332. 

(N.  Y.)  160.  5  Webster  v.  Bailey,  31   Mich.  36.     See 

2  Mar.shall   v.  Billingsly,  7    Ind.  250;  Goninan  v.  Stephenson,  24  Wis.  75;  Mc- 

Farmers'  Bank  v.  Douglass,  19  Miss.  469 ;  Candless  v.  Engle,  51  Pa.  St.  309. 
Langdon  v.  Keith,  9  Vt.  299. 

640 


CONSTRUCTION   AND    EFFECT   OF   ASSIGNMENTS.       [§§  829,  830. 

the  transaction,  and  diligence  in  discovering  the  facts  afterwards. 
Something  more  than  mere  failure  of  consideration  is  requisite  to 
entitle  him  to  reclamation  ;  ^  either  fraud  in  fact  or  in  legal  effect 
is  necessary .2 

Althougli  an  assignment  of  a  mortgage  be  made  for  the  purpose 
of  hindering,  delaying,  and  defeating  the  assignor's  ci*editors,  if 
the  assignee  purchases  it  in  good  faith  for  value,  without  notice 
of  the  fraudulent  intent  of  the  assignor,  or  of  circumstances 
which  should  have  put  him  upon  inquiry,  his  title  cannot  be  im- 
peached. As  against  him  it  does  not  avail  to  show  that  the 
debtor's  assignment  was  fraudulent,  unless  it  be  also  shown  that 
the  assignee  participated  in  the  fraudulent  intent,  or  took  it  under 
such  circumstances  that  he  is  chargeable  with  notice  of  the  fraud- 
ulent intent  on  the  part  of  the  assignor.^ 

829.  An  assignment  passes  all  the  securities.  —  In  general, 
it  ma}^  be  said  that  an  assignment  of  a  mortgage  is  an  assignment 
not  onl}'^  of  the  claim  against  the  mortgagor,  but  as  well  of  all 
the  securities  which  the  assignor  holds  against  the  mortgagor  or 
others  for  the  same  debt.*  It  transfers  any  judgments  that  may 
have  been  obtained  against  indorsers  or  others.  It  passes,  also,  a 
mortgage  given  as  collateral  security  to  the  mortgage  debt  as- 
signed.^ 

830.  Whether  the  assignment  carries  a  separate  contract 
of  guaranty.  —  The  assignment  of  a  mortgage  does  not  carry  with 
it  a  separate  contract  of  guaranty  of  the  payment  of  the  mort- 
gage debt,  if  that  is  strictly  a  personal  engagement,  and  it  is  con- 
strued to  be  such  when  it  is  made  to  the  holder  of  the  mortgage 
by  name,  "  his  executors  and  administrators."  The  surety  is  not 
holden  beyond  the  precise  terms  of  his  contract,  and  these  words, 
in  their  plain  and  natural  import,  do  not  signify  any  intention  to 
indemnify  any  one  but  the  person  to  whom  it  was  given.  This 
person  having  put  it  out  of  his  power  to  receive   payment,  the 

1  Butman  v.  Husscy,  30  Me.  263.  and  see  Gray  v.   Schenck,  4  N.  Y.  460 ; 

2  Peabody  v.  Fenton,  3  Barb.  (N.  Y.)     Sprague  v.  Graham,  29  Me.  160. 

Ch.  451.  *  Philips  v.  Bank  of  Lewistown,  18  Pa. 

8  Tantum  v.  Green,  21  N.  J.  Eq.  364;     St.  394. 

"  Philips  V.  Bank  of  Lewistown,  supra. 
VOL.  I.  41  641 


§§  831,  832.]  ASSIGNMENT   OF   MORTGAGES. 

purpose  of   the  guaranty  is  accomplished  and  the  guarantor  is 
discharged. 1 

831.  There  is  an  implied  covenant  in  an  assignment  of  a 
mortgage  that  the  assignor  will  not  receive  the  money  on  the  in- 
strument assigned,  or  that  if  he  does  he  will  pay  it  over  to  the 
assignee.  This  is  the  assignee's  only  security  until  he  gives  no- 
tice to  the  mortgagor.  If  the  assignee  omits  to  give  such  notice, 
and  the  mortgagor  pays  the  mortgage  to  the  assignor,  the  as- 
signee's only  remedy  is  upon  such  implied  covenant  against  his 
assignor.^ 

On  the  other  hand,  after  such  assignment  and  notice  to  the 
mortgagor,  the  latter  cannot,  upon  the  subsequent  insolvency  of 
the  mortgagee,  purchase  desperate  claims  against  him,  and  tender 
them  in  payment  of  the  debt,  although  the  mortgage  has  been  as- 
signed only  as  collateral  security.  The  debtor  is  bound  to  respect 
the  rights  of  the  holder  of  the  debt,  and  knowing  those  rights  he 
cannot,  according  to  the  rules  of  equity,  or  the  principles  of  the 
common  law,  defeat  them.^  This  is  a  dilTerent  question  from  that 
which  arises  when  the  rights  and  equities  of  the  debtor  exist  at 
the  time  of  the  assignment. 

There  is  no  implied  warranty  of  the  solvency  of  the  mortgagor, 
though  there  is  such  a  warranty  that  the  mortgage  debt  has  not 
already  been  paid.  But  in  case  it  has  been  paid  the  assignor  is 
liable,  not  on  the  contract  of  assignment,  but  for  the  return  of 
the  money  or  thing  received  for  the  assignment.* 

832.  Usury.  —  If  a  mortgage  be  untainted  with  usury  in  its 
origin  it  is  not  invalidated   by  a  subsequent  usurious  transfer,  as 

1  Smith  V.  Starr,  4  Hun  (N.  Y.),  123.       required  that  it  be  in  writing.     In  the  case" 

2  Horstman  v.  Gerker,  49  Pa.  St.  282.      of  Northampton  Bank  v.  Balliet,  8  W.  & 
8  Philips  V.  Bank  of  Lewistown,  18  Pa.    S.  (Pa.)  311,  the  knowledge  was  derived 

St.  394,403.    Mr.  Justice  Lewis,  delivering  from  conversation  with  an  agent  of  the 

the  oi>inion  in  this  case,  said  :  "  The  pur-  assignor,  who  had  no  further  interest  in 

chase  of  depreciated  notes,  after  knowledge    the  demand In  a  case  of  this  kind, 

of  such  an  assignment,  is  an  act  of  bad  all  that  is  required  is  to  lay  before  the  jury 

faith,  injurious  to  the  rights  of  others.     It  such    circumstances    as    justify   them   in 

is  initnatirial  in  what  manner  the  knowl-  drawing  the  inference  that  a  knowledge 

edge  of  the  transfer  was  acquired,  so  that  it  of   the    assignee's  rights   existed  at    the 

existed  at  the  time  of  the  purchase.     It  is  time    the    measures   were    taken    by   the 

not  necessary  that  notice  should  be  given  debtor  for  the  purpose  of  defeating  them." 

by  the  party  claiming  the  transfer,  nor  is  it  *  French  v.  Turner,  15  Ind.  59. 

642 


WHETHER   ASSIGNEE   TAKES    SUBJECT    TO    EQUITIES.       [§§  833,  834. 

for  instance  by  being  pledged  as  security  for  a  usurious  loan.^ 
The  assignee  who  has  received  the  usury  may  be  liable  to  his  as- 
signor for  the  usury  taken  ;  but  the  mortgage  itself  remains  a 
valid  security  in  his  hands  against  the  mortgagor  and  the  mort- 
gaged property. 

833.  Cancellation  of  assignment.  —  An  assignment  of  a 
mortgage  may  be  cancelled  before  it  is  recorded,  and  the  note 
being  indorsed  back  to  the  mortgagee  he  may  maintain  a  writ  of 
entry  to  foreclose  the  mortgage.  The  voluntary  surrender  of  the 
only  legal  evidence  by  which  the  assignee  could  establish  liis 
claim  may  be  regarded  as  in  the  nature  of  an  estoppel.  By  can- 
celling the  assignment  the  assignee  voluntarily  precludes  him- 
self from  resorting  to  it.^  Moreover,  upon  the  retransfer  of  the 
note,  the  assignee  has  no  equitable  interest  in  the  mortgage.  If, 
therefore,  the  assignment  is  rendered  useless  and  ineffectual  to  the 
assignee,  the  mortgage  remains  undischarged,  and  in  full  force, 
and  the  right  of  enforcing  it  must  be  vested  in  the  mortgagee,  who 
alone  has  any  interest  in  it. 

7.    Whether  an  Assignee  takes  subject  to  Equities. 

834.  When  the  mortgage  secures  a  negotiable  note  an 
assignee  for  value  before  due  takes  free  from  equities.  —  At 
common  law,  so  far  as  a  mortgage  is  merely  a  debt  or  security 
for  a  debt,  it  is  a  chose  in  action  not  negotiable,  and  therefore  not 
assignable.  So  far  as  a  mortgage  is  a  conveyance  of  the  legal 
estate,  an  assignment  or  conveyance  of  such  estate  maj^  be  made 
by  a  deed  in  usual  form.  A  mortgage  note,  if  negotiable  in  form, 
is  of  course  assignable  by  indorsement,  and  the  assignee  takes  the 
legal  title  to  it. 

But  the  debt  being  the  principal  thing  imparts  its  character  to 
the  mortgage  ;  and  although  the  mortgage  itself  in  the  beginning 
is  only  assignable  in  equity,  the  legal  rights  and  remedies  upon 
the  debt  have  become  fixed  upon  this  incident  of  the  debt,  and 
the  equitable  principles  in  regard  to  the  mortgage  have  become 
naturalized  in  the  common   law  system.     When,  therefore,  the 

1  Tearsall  c.  KingsIanJ,  3  Edw.  (N.  Y.)     Ed\v.    (N.  Y.)   C\\.   22;    Donnington   v. 
CIi.  195;  Warner  v.  Gouverneiir,  1  Barb.     Meeker,  II  N.  J.  Eq.  (3  Stock.)  362. 
(N.  Y.)36;  and  see  Lovett  t;.  Dimoiid,  4         -  Howe   v.    Wilder,    11    Gray    (Mass.), 

267. 

643 


§  835.] 


ASSIGNMENT   OF   MORTGAGES. 


debt  secured  is  in  the  form  of  a  negotiable  note,  a  legal  transfer 
of  this  carries  with  it  the  mortgage  security  ;  and  inasmuch  as  a 
negotiable  promissory  note  by  the  commercial  law,  when  as- 
signed for  value  before  maturity,  passes  to  the  assignee  free  of  all 
equitable  defences  to  which  it  was  subject  in  the  hands  of  the 
payee,  it  does  not  lose  this  character  which  it  has  under  the  com- 
mercial law  when  it  is  secured  by  a  mortgage.  The  mortgage 
rather  is  regarded  as  following  the  note,  and  as  taking  the  same 
character  ;  and  it  is  the  generally  received  doctrine  that  the  as- 
signee of  a  mortgage  securing  a  negotiable  note,  taking  it  in  good 
faith  before  maturity,  takes  it  free  from  any  equities  existing  be- 
tween the  original  parties.^ 

835.  In  such  case  it  does  not  matter  that  the  consider- 
ation of  the  mortgage  -was  wholly  void,  as  where  the  consid- 
eration was  the  price  of  intoxicating  liquors  sold  in  violation  of 
law.  The  negotiable  note  secured  by  the  mortgage  is  valid  in 
the  hands  of  a  bond  fide  indorsee  for  value  without  notice  of  the 


1  Carpenter  v.  Longan,  16  AVall.  271  ; 
Kenicott  v.  Supervisors,  lb.  452  ;  Tivylor 
V.  Page,  6  Allen  (Mass.),  86  ;  Sprague  v. 
Graham,  29  Me.  160;  Pierce  v.  Faunce, 
47  Me.  507 ;  Gould  v.  INIarsh,  4  Thomp. 
&  C.  (N.  Y.)  128;  1  Hun,  566  ;  Button  v. 
Ives,  2  Mich.  515;  Cicotte  v.  Gagnier,  5 
Mich.  381  ;  Bloomer  v.  Henderson,  8  Mich. 
395  ;  Reeves  v.  Scully,  Walk.  (Mich.)  Ch. 
248;  Croft  v.  Punster,  9  Wis.  510;  Cor- 
nell V.  Hichens,  11  Wis.  353;  Fisher  v. 
Otis,  3  Chand.  (Wis.)  83;  Martineau  v. 
McCollum,  4  lb.  153. 

In  New  Jersey  it  is  provided  by  stat- 
ute that  mortgages  shall  be  assignable  at 
law,  and  that  the  assignee  may  sue  in  his 
own  name;  but  that  in  such  suit  there 
shall  be  allowed  all  just  set-ofFs  and  other 
defences  against  the  assignor  that  would 
have  been  allowed  in  any  action  brought 
by  him  and  existing  before  the  defendant 
had  notice  of  such  assignment,  and  all 
payments  made  to  the  assignor  in  good 
faith  before  such  notice.  Nixon's  Dig.  p. 
613. 

In  New  York  a  bond  is  almost  exclu- 
sively used  in  connection  with  a  mortgage. 

644 


In  the  recent  case  of  Trustees  of  Union 
College  V.  Wheeler,  61  N.  Y.  88,  Mr.  Com- 
missioner Dvvight,  referring  to  the  cases 
cited  in  support  of  the  rule  above  stated, 
said  :  "  These  cases  have  not  yet  become 
established  law  in  this  state.  If  sound, 
they  must  be  made  to  rest  on  rules  of  law 
attending  the  transfer  of  negotiable  paper, 
and  cannot  be  held  "by  indirection  to  over- 
throw a  rule  concerning  the  ordinary  bond 
and  mortgage  which  has  become  fixed  in 
our  jurisprudence." 

Likewise  in  Pennsylvania  a  bond  in- 
stead of  a  note  is  almost  always  used. 
Mr.  Justice  Thompson  said,  in  Horstman 
V.  Gerker,  49  Pa.  St.  282,  that  although  a 
mortgage  "  may  be  assigned  so  as  to  per- 
mit the  assignee  to  sue  in  his  own  name, 
yet  it  is  subject  to  the  same  equities  and 
rules  that  govern  other  non-negotiable  in- 
struments or  claims." 

No  case  involving  the  question  of  the 
admissibility  of  equities  against  the  holder 
of  a  negotiable  note  secured  by  a  mort- 
gage has  been  noticed.  See,  also.  Twitch- 
ell  V.  McMurtrie,  77  Pa.  St.  383. 


WHETHER    ASSIGNEE    TAKES    SUBJECT    TO   EQUITIES.       [§§  836,  837. 

illegal  consideration  for  which  it  was  given. ^  The  mortgage 
being  assigned  at  the  time  when  tlie  note  was  indorsed,  "  we 
know  of  no  principle  or  authority,"  says  Mr.  Justice  Metcalf, 
"  which  makes  the  mortgage  less  valid  than  the  note,  in  the 
plaintitf's  hands." 

A  bond  fide  assignee  for  value  of  a  mortgage  of  land  may  en- 
force it  by  foreclosure,  although  it  was  originally  given  as  con- 
sideration for  a  transfer  of  the  land  fraudulent  as  to  creditors,  and 
such  transfer  has  been  adjudged  void.  The  parties  engaged  in 
such  fraud  are  estopped  from  setting  it  up.^ 

836.  An  exception  to  this  general  rule  occurs  when  the  as- 
signment by  its  terms  is  made  subject  to  the  rights  of  the  mort- 
gagor. Thus,  for  instance,  where  a  mortgage  made  partly  to  secure 
future  advances  was  assigned  by  the  mortgagee  by  a  deed  which 
purported  to  transfer  all  his  right,  title,  and  estate  in  the  mort- 
gaged premises,  and  the  debt  or  note  secured  by  the  mortgage, 
subject,  however,  to  all  the  riglits  of  the  mortgagor  in  and  to  the 
same,  it  was  held  that  the  assignee  took  no  greater  rio-hts  than 
the  mortgagee  himself  had.-^  This  decision  was  placed  upon  the 
ground  that  this  language  was  used  in  its  ordinary  and  current 
meaning,  and  not  in  any  special  and  technical  sense,  and  that  the 
natural  construction  of  it  is  that  it  preserves  all  the  equities  of  the 
mortgagor;  and  this  construction  not  being  inconsistent  with  the 
purpose  and  intention  of  the  instrument,  must  prevail. 

837.  This  doctrine  applies  when  the  note  is  indorsed  and 
the  mortgage  is  merely  delivered.  —  If  the  mortgage  notes  be 
indorsed  before  maturity,  and  the  mortgage  delivered  without  any 
assignment  of  it  at  the  time,  the  indorsee  acquires  an  interest  in 
the  mortgage  which  he  may  enforce  through  the  mortgagee  as 
holding  it  for  his  benefit;*  and  the  owner  of  the  equity  of  re- 
demption cannot  in  a  suit  to  redeem  set-off  against  the  indorsee 
claims  he  holds  against  the  mortgagee  acquired  after  such  in- 
dorsement and  delivery,  and  before  the  mortgage  was  assigned 
formally  to  the  purchaser.^ 

1  Taylor  v.  Pajie,  6  Allen  (Ma?s.),  86.  Jackson  v.  Blodget,  5  Cow.  (N.  Y.)  203  ; 

-  Smart  r.  Bement,  4  Abb.  (N.  Y.)  App.  per  Shaw,  C.  J.,   in  Young  i'.   Miller,  6 

Dec.  25.3.  Gray  (Mass.),  1.52. 

8  Fisher  v.  Otis,  3  Chand.  (Wis.)  83.  5  Brecn  v.  Seward.  11  Gray  (Mass.),  118. 

*  Green  v.  Hart,  1  Johns.  (N.  Y.)  580  ;  (345 


§  838.]  ASSIGNMENT   OF   MORTGAGES. 

But  an  assignment  of  the  mortgage  without  the  debt  transfers 
only  a  naked  trust,  and  the  mortgagor  is  still  entitled  to  all  the 
equities  existing  in  his  favor  against  the  note,  in  the  same  man- 
ner as  if  the  mortgage  had  not  been  assigned. ^  In  such  case,  even 
if  the  mortgage  was  assigned,  in  part  fulfilment  of  a  promise  to 
transfer  both  as  a  gift,  and  the  note  be  not  delivered,  there  is 
no  transfer  of  the  debt.^ 

838.  Doctrine  that  the  assignee  takes  the  mortgage  subject 
to  existing  equities.  —  There  is,  however,  some  conflict  of  author- 
ity upon  the  question  whether  the  assignee  of  a  mortgage  which 
secures  a  negotiable  note  takes  it  subject  to  the  equities  existing 
between  the  mortgagor  and  mortgagee  at  the  date  of  the  assign- 
ment. Contrary  to  the  general  doctrine,  it  is  contended  that  al- 
though the  mortgage  note  is  negotiable,  the  mortgage  itself  is 
onl}^  assignable  in  equity,  and  therefore  the  assignee  having  to 
resort  to  equity  to  enforce  his  rights  is  compelled  to  do  equity 
towards  the  mortgagor,  and  allow  him  all  the  rights  of  defence  he 
had  against  the  mortgagee.^  Although  the  purchaser  of  a  note 
before  maturity  takes  it  subject  to  no  equities  existing  between 
the  original  parties,  yet  if  it  is  secured  by  mortgage  the  non-as- 
signable character  of  the  security  qualifies  his  rights  and  remedies 
upon  the  note,  and  makes  it  subject  to  the  defences  and  equities 
to  which  it  was  liable  in  the  hands  of  the  assignor. 

A  mortgage  distinct  from  the  debt  has  no  value  in  itself,  and, 
if  assigned,  the  assignee  holds  it  in  trust  for  the  holder  of  the 
note  or  debt.  The  mortgage  is  not  assignable  either  by  statute 
or  b}^  the  common  law.^  The  mortgage  follows  the  notes  only  in 
equity,  and  is  subject  in  the  hands  of  the  assignee  to  any  defence 
which  would  avail  against  it  in  the  hands  of  the  mortgagee  him- 
self, although  the  assignee  may  have  purchased  the  note  in  good 
faith,  for  a  valuable  consideration  and  before  maturity.^  By  the 
assignment  of  the  notes  the  assignee  obtained  an  equitable  in- 
terest in  the  mortgage,  which  courts  of  equity,  under  certain  cir- 

1  Pope  w.  Jacobus,  10  Iowa,  262.  31   111.  212;    Sumner  v.  Waugh,  56    111. 

2  Wilson  V.  Carpenter,  17  Wis.  512.  531.     The  assignment  of  the  notes  carries 
8  Johnson  v.  Carpenter,  7   Minn.  176;     the  security  of  a  deed  made  in  trust  to  an- 

Bouligny  v.  Fortier,  17  La.  Ann.  121.  other  person,  and  a  court  of  equity  will 

*  Medley  v.  Elliott,  62  111.  532.  compel  the  trustee  to  sell  for  the  benefit  of 

6  Olds  V.  Cummings,  31  111.  188  ;  White  the  holder  of  the  notes.     Sargent  v.  Howe, 

V.  Sutherland,  64  111.  181 ;  Fortier  v.  Darst,  21  111.  148. 
646 


WHETHER   ASSIGNEE    TAKES    SUBJECT  TO   EQUITHiS.       [§  839. 

cumstances,  will  enforce,  if  it  can  be  done  without  a  violation  of 
the  equitable  rights  of  others.  He  who  buys  that  which  is  not 
assignable  at  law,  relying  upon  a  court  of  chancery  to  protect  and 
enforce  his  rights,  takes  it  subject  to  all  infirmities  to  which  it  is 
liable  in  the  hands  of  the  assignor. 

"  We  have  not  met  with  a  single  case  where  remedy  has  been 
sought  in  a  court  of  chancery,  upon  a  mortgage,  by  an  assignee, 
in  which  every  defence  has  not  been  allowed  which  the  mortgagor 
or  his  representatives  could  have  made  against  the  mortgagee 
himself,  unless  there  has  been  an  express  statute  authorizing  the 
assignment  of  the  mortgage  itself.  There  are  many  cases  in  which 
the  assignees  have  been  protected  against  latent  equities  of  third 
persons,  whose  rights,  or  even  names,  do  not  appear  on  the  face  of 
the  mortgage.  And  the  reason  is,  that  it  is  the  duty  of  the  pur- 
chaser of  a  mortgage  to  inquire  of  the  mortgagor  if  there  be  any 
reasouywhy  it  should  not  be  paid  ;  but  he  should  not  be  required 
to  inquire  of  the  whole  world  to  see  if  some  one  has  not  a  latent 
equity  which  might  be  interfered  with  by  his  purchase  of  the 
mortgage,  as  for  instance  a  cestui  que  trust.^^  ^ 

This  is  the  view  taken  by  the  courts  in  Illinois  ^  and  Ohio.^ 

839,  The  ground  upon  which  the  decisions  rest  is  chiefly  that 
while  notes  are  made  negotiable  by  commercial  usage,  by  statute 
there  is  no  such  usage  or  provision  as  to  mortgages,  and  therefore 
that  the  assignee  of  a  mortgage  takes  it  as  he  would  any  other 
chose  in  action,  subject  to  all  the  equities  which  subsisted  against 
it  while  in  the  hands  of  the  original  holder. 

This  view  was  adopted  in  the  Territory  of  Colorado  in  a  case 
where  the  mortgagee  had  a  pledge  of  personal  property  in  addi- 

1  Chief  Justice  Caton,  in  Olds  v.  Cum-  with  all  the  ri;chts  incident  to  such  paper; 
mings,  31  111.  188.  In  this  case  the  de-  and  the  other,  the  mortgage  with  security- 
fence  of  usury,  in  the  mortgage  note,  was  on  land,  which  may  he  enforced  in  the 
allowed  to  be  set  up  against  the  assignee,  courts  of  equity,  and  is  subject  to  the  equi- 
taking  the  same  before  maturity.  tics  existing   between    the  parties.      The 

2  Olds  y.  Cummings,  31  111.  192;  Walker  right  of  an  assignee  to  set  at  defiance  a 
r.  Dement,  42  111.  273.  In  the  former  case  defence  which  could  be  made  against  the 
Chief  Justice  Caton  said  :  "  He  who  holds  assignor  is  an  arbitrary  statutory  right, 
a  note  and  also  a  mortgage  holds  in  fact  created  for  the  convenience  of  commerce 
two  instruments  for  the  security  of  the  alone,  and  must  rely  upon  the  statute  for 
debt ;  first,  the  note  with  its  personal  se-  its  support,  and  is  not  fostered  and  en- 
curity,  whit-h  is  commercial  paper,  and  as  couragcd   by  courts  of  equity." 

such  may  be  enforced  in  the  courts  oflaw,         ^  Baily  v.  Smith,  14  Ohio  St.  396. 

647 


§  840.]  ASSIGNMENT   OF   MORTGAGES. 

tioii  to  the  note  and  mortgage,  which  were  assigned  before  matu- 
rity to  a  bond  Jide  'purchaser.  Previous  to  the  assignment  a  part 
of  the  debt  had  been  paid  by  a  sale  of  a  portion  of  the  property 
pledged,  but  no  credit  was  indorsed  on  the  note.  It  was  held  that 
a  mortgagor,  in  a  suit  by  the  assignee  to  foreclose  the  mortgage, 
was  entitled  to  be  credited  with  such  payment.^ 

840.  Overruled  by  the  Supreme  Court  of  the  United  States. 
This  case  was  then  removed  by  appeal  to  the  Supreme  Court  of 
the  United  States,  where  the  decree  of  the  Supreme  Court  of  the 
Territory  of  Colorado  was  reversed,  and  the  generally  accepted 
doctrine  affirmed  that  the  assignee  for  value  before  maturity  of  a 
negotiable  note  and  a  mortgage  securing  it  is  unaffected  by  any 
equities  to  which  it  would  be  subject  in  the  hands  of  the  mortga- 
gee, and  of  which  the  assignee  had  no  notice.^  Mr.  Justice  Swayne 
answers  the  view  of  the  case  taken  in  the  lower  court,  and  in  the 
decisions  with  which  that  is  in  accord.  "  The  transfer  of  the 
note,"  he  says,  "  carries  with  it  tlie  security,  without  any  formal 
assignment  or  delivery,  or  even  mention  of  the  latter.  If  not 
assignable  at  law,  it  is  clearly  so  in  equity.  When  the  amount 
due  on  the  note  is  ascertained  in  the  foreclosure  proceeding,  equity 
recognizes  it  as  conclusive,  and  decrees  accordingly.  Whether 
the  title  of  the  assignee  is  legal  or  equitable  is  immaterial.  The 
result  follows  irrespective  of  that  question.  The  process  is  only 
a  mode  of  enforcing  a  lien. 

"  All  the  authorities  agree  that  the  debt  is  the  principal  thing 
and  the  mortgage  an  accessory.  Equity  puts  the  principal  and 
accessory  upon  a  footing  of  equality,  and  gives  to  the  assignee  of 
the  evidence  of  the  debt  the  same  rights  in  regard  to  both.    There 

1  "  Whether  the  proceedings  be  at  law  the  legal  and  unquestionable  evidence  of 
or  in  equity,  the  indebtedness  is  the  prin-  the  indebtedness,  as  the  mortgage  is  evi- 
cipal  thing,  for  both  remedies  are  designed  deuce  of  the  lien,  and  each  according  to 
to  enforce  payment  of  the  money.  I  con-  its  office  determines  the  rights  of  the  par- 
cede  that  the  remedy  at  law  is  upon  the  ties.  It  is  impossible  to  say  that  there  is 
note  alone,  but  it  is  equally  plain  that  the  anything  due  upon  the  mortgage  discon- 
suit  in  equity  is  founded  upon  the  note  nected  from  the  note,  for  the  reason  that 
and  mortgage,  and  that  each  is  essential  the  note  alone  determines  the  amount  of 

to  the  right  of  recovery Where  the  indebtedness."     Longan  v.  Carpenter, 

the  indebtedness  is  indorsed  by  a  separate  1  Col.  205.  See  dissenting  opinion  of  Hal- 
instrument,  a  court  of  equity  is  as  much  lett,  C.  J. 

bound  to  give  effect  to  that  instrument  as  '-  Carpenter  v.  Longan,  16  Wall.  271. 

to  the  mortgage The  note  is 

648 


^  WHETHER   ASSIGNEE   TAKES   SUBJECT    TO  EQUITIES.       [§§  841,  842. 

is  no  departure  from  any  principle  of  law  or  equity  in  reaching 
this  conclusion.  There  is  no  analogy  between  this  case  and  one 
where  a  chose  in  action  standing  alone  is  sought  to  be  enforced. 
The  fallacy  which  lies  in  overlooking  this  distinction  has  mis- 
led many  able  minds,  and  is  the  source  of  all  the  confusion  that 
exists.  The  mortgage  can  have  no  separate  existence.  When 
the  note  is  paid  the  mortgage  expires.  It  cannot  survive  for  a 
moment  the  debt  which  the  note  represents.  This  dependent 
and  incidental  I'elation  is  the  controlling  consideration,  and  takes 
the  case  out  of  the  rule  applied  to  choses  in  action  where  such 
relation  of  dependence  exists.  Accessorium  non  ducit,  sequitur 
principaley 

841.  When  the  note  is  overdue.  —  One  who  takes  an  assign- 
ment of  a  mortgage  after  the  maturity  of  the  promissory  note 
secured  by  it  is  no  longer  entitled  to  this  protection,  but  takes  it 
subject  to  all  defences  which  the  mortgagor  might  have  set  up 
against  the  original  mortgagee,  although  he  has  no  notice  of  any 
such  defence,  and  there  is  nothing  upon  the  face  of  the  papers 
to  indicate  it.  The  mortgage  and  note  are  subject  to  the  same 
equities  that  the  note  would  be  subject  to  if  not  secured.^ 

Moreover  an  assignment  made  to  secure  a  preexisting  debt  does 
not  give  the  assignee  the  position  of  a  purchaser  for  value,  and 
entitle  him  to  hold  the  mortgage  free  of  the  equities  to  which  his 
assignor  was  subject ;  but  in  such  case,  although  he  takes  the  note 
before  maturity,  he  takes  it  subject  to  such  equities.^ 

842.  A  bond  not  being  a  negotiable  instrument  is  subject 
when  assigned  to  all  equities  existing  between  the  original  parties 
to  it ;  and  of  course  is  subject  to  such  equities  when  assigned  with 
the  mortgage,  which  is  collateral  to  it.  The  rule  that  the  as- 
signee of  a  mortgage  before  maturity  takes  it  free  from  existing 
equities  applies  only  to  such  mortgages  as  are  collateral  to  negoti- 
able notes.^ 

1  Fish  V.  French,  15  Gray  (Mass.), 520;  son,  II  N.  J.  Eq.  (3  Stock.)  246;  Dunn 
Howard  v.  Grcsliam,  27  Ga.  347.  v.  Seymour,  lb.  278  ;  Andrews  v.  Torrey, 

2  Glidden  v.  Hunt,  24  Pick.  (Mass.)  221 ;  14  N.  J.  Eq.  355  ;  Trustees  of  Union  Col- 
Clark  V.  Flint,  22  Pick.  (Mass.)  231.  lege  i-.  Wheeler,  61  N.  Y.  88,  107  ;  Ingra- 

3  Croft  V.  Bunstcr,  9  Wis.  503 ;  Gould-  ham  v.  Disborough,  47  N.  Y.  421  ;  Rice 
ing  1-.  Bunster,  9  Wis.  513;  Musgrove  v.  v.  Dewey,  54  Barb.  (N.  Y.)  455;  Clute 
Kennel!,  23  N.  J.  Eq.  75 ;  Loscy  v.  Simp-  v.   Robison,  2  Johns.  (N.   Y.)  595  ;     Ni- 

649 


§  842.]  ASSIGNMENT    OF   MORTGAGES. 

Therefore,  any  defence  to  which  the  bond  and  mortgage  were 
subject  in  the  hands  of  the  mortgagee  may  still  be  made  after 
they  have  been  transferred  to  another  for  value.  Fraud  and 
duress  in  procuring  the  execution  of  the  bond  is  a  defence  to  the 
mortgage  in  the  hands  of  an  assignee.^  The  consideration  may 
be  impeached.  Claims  in  set-off,  which  the  mortgagor  might  in- 
terpose against  the  mortgagee,  he  may  set  up  against  the  mort- 
gage in  the  hands  of  the  assignee.  The  assignee  takes  only  the 
title  that  the  mortgagee  had.  The  bond  is  a  mere  chose  in  action, 
and  the  mortgage  is  a  chose  in  action  also.  Neither  instrument 
having  any  negotiable  character,  the  mortgagor's  rights  in  respect 
to  the  obligation  are  not  changed  in  any  way  by  a  transfer  of  the 
mortgage.2 

"  A  purchaser  of  a  chose  in  action,"  says  Lord  Thurlow,^ 
"  must  always  abide  by  the  case  of  the  person  from  whom  he 
bu^^s ;  that  I  take  to  be  a  universal  rule."  Aside  from  negotiable 
paper,  which,  under  the  commercial  law  has  peculiar  privileges, 
the  holder  of  a  chose  in  action  cannot  alienate  anything  but  the 
beneficial  interest  he  possesses.  His  capacity  to  transfer  to  another 
is  exactly  measured  by  his  own  rights.  Except  as  the  codes  of 
practice  and  special  statutes  in  some  states  have  changed  the 
rule,  an  action  by  the  assignee  to  enforce  his  rights  must  be  in  the 
name  of  the  assignor.  Therefore,  "  every  assignment  of  a  chose 
in  action  is  considered  in  equity  as  in  its  nature  amounting  to 
a  declaration  of  trust,  and  to  an  agreement  to  permit  the  assignee 
to  make  use  of  the  name  of  the  assignor  in  order  to  recover  the 
debt  or  to  reduce  the  property  into  possession."* 


agara  Bank  w.  Rosevelt,  9  Cow.  (N.  Y.)  2  Moore  r.  Metropolitan  Nat.  Bank,  55 
409;  S.  C.  Hopk.  (N.Y.)Ch.  579;  Ellis  r.  N.  Y.  41;  Ingraham  v.  Disborough,  47 
Messervie,  11  Paige  (N.  Y.),  467  ;  S.  C.  5  N.  Y.  421 ;  Reeves  v.  Kimball,  40  N.  Y. 
Denio  (N.  Y.),  640;  Pendleton  v.  Fay,  299 ;  Mason  y.  Lord,  40  N.  Y.  476  ;  Bush 
2  Paige  (N.  if.),  202;  James  y.  Morey,  2  v.  Lathrop,  22  N.  Y.  535;  Mickles  v. 
Cow.  (N.  Y.)  246;  Hartley  y.  Tatham,  10  Townsend,  18  N.  Y.  575;  Eichards  v. 
Bosw.  (N.  Y.)  273;  Reeves  v.  Scully,  Warring,  1  Keyes  (N.  Y.),  575;  Ely  v. 
Walk.  (Mich.)  248;  Russell  v.  Waite,  McNight,  30  How.  (N.  Y.)  Pr.  97  ;  West- 
Walk.  (Mich.)  31;  Nichols  v.  Lee,  10  fall  r.  Jones,  23  Barb.  (N.  Y.)  9  ;  Jones  r. 
Mich.  526  ;  Mott  v.  Clark,  9  Pa.  St.  399  ;  Hardesty,  10  G.  &  J.(Md.)  404,  420  ;  Curab. 
Pryor  v.  Wood,  31  Pa.  St.  142 ;  Twitchell  Coal  &  Iron  Co.  v.  Parish,  42  Md.  598. 
V.  McMurtrie,  77  Pa.  St.  383.  s  Davies  v.  Austen,  1  Ves.  Jun.  247, 

1  Martineau    v.    McCollum,   4    Chand.         *  o  Story  Eq.  Jur.  §  1040. 
(Wis.)   153. 

650 


WHETHER   ASSIGNEE   TAKES   SUBJECT   TO   EQUITIES.       [§  843. 

But  an  assignee  who  takes  a  mortgnge  and  bond  with  actual 
or  constructive  notice  of  the  equities  of  third  persons  takes  them 
subject  to  such  equities.^ 

843.  Whether  the  rule  is  limited  to  equities  between  the 
original  parties.  —  The  rule  that  the  assignee  of  a  bond  and 
mortgage,  which  are  merely  choses  in  action,  takes  them  subject 
to  existing  equities  is  limited  to  such  equities  only  as  existed  be- 
tween the  mortgagor  and  mortgagee,  and  is  not  extended  to  those 
existing  between  the  mortgagee  and  thii-d  persons.  "  The  as- 
signee," says  Chancellor  Kent,^  "  can  always  go  to  the  debtor, 
and  ascertain  what  claims  he  may  have  against  the  bond,  or  other 
chose  in  action,  which  he  is  about  purchasing  from  the  obligee  ; 
but  he  may  not  be  able  with  the  utmost  diligence  to  ascertain 
the  latent  equity  of  some  third  person  against  the  obligee.  He 
has  not  any  object  to  which  he  can  direct  his  inquiries  ;  and  for 
this  reason,  the  claim  of  the  assignee  without  notice  of  a  chose 
in  action  was  preferred,  in  the  late  case  of  Redfearn  v.  Ferrier^ 
to  that  of  a  third  party  setting  up  a  secret  equity  against  the  as- 
signor. Lord  Eldon  observed  in  that  case,  that  if  it  were  not  to 
be  so,  no  assignments  could  ever  be  taken  with  safety." 

In  a  recent  case  before  the  Court  of  Appeals  of  New  York,^ 
Mr.  Commissioner  Dwight  reviewed  the  subject:  "Is,  then,  the 
plaintiff  in  any  better  position  than  Mott,  the  mortgagee.  It 
is  well  settled  that  an  assignee  of  a  mortgage  must  take  it  sub- 
ject to  the  equities  attending  the  original  transaction.  If  the 
mortgagee  cannot  himself  enforce  it,  the  assignee  has  no  greater 
rights.  The  true  test  is  to  inquire  what  can  the  mortgagee  do  by 
way  of  enforcement  of  it  against  the  property  mortgaged  ;  what 
he  can  do  the  assignee  can  do,  and  no  more.  In  Clute  v.  RohUon^ 
the  rule,  as  stated  by  Kent,  Cli.  J.,  is,  that  a  mortgage  is  liable  to 
the  same  equity  in  the  hands  of  the  assignee  that  existed  against 
it  in  the  hands  of  the  obligee.*'  The  rule  is  not  simply  that  the 
assignee  takes  subject  to  the  equities  between  the  original  parties, 
though  that  is  sound  law.''    It  goes  further  tlian  this,  and  declares 

1  Hovey  v.  Hill,  3   Lans.  (N.  Y.)  167  ;        *  Trustees  of  Union  College  v.  Wheeler, 
Mathews   v.  Ueyward,  2    S.  C.  239;  Go-     61  N.  Y.  88,  104. 

deffioy  V.  Caldwell,  2  Cal.  489.  ^  2  Johns.  (N.  Y.)  612. 

2  Murray  i-.  Lylbuin,  2  Johns.  (N.  Y.)         6  2  Vein.  692,  765;  1  Yesey,  122. 

Ch.  442.  7  Ingraham   v.  Disborough,   47    N.    Y. 

3  I  Dow.  50.  421. 

651 


§  843.]  ASSIGNMENT    OF   MORTGAGES. 

that  the  purchaser  in  chose  in  action  must  always  abide  the  case 
of  the  person  from  whom  he  buys.^  The  reason  of  the  rule  is,  that 
the  holder  of  a  chose  in  action  cannot  alienate  anything  but  the 
beneficial  interest  he  possesses.  It  is  a  question  of  power  or  ca- 
pacity to  transfer  to  another,  and  that  capacity  is  to  be  exactly 
measured  by  his  own  rights.^  Kent,  Ch.  J.,  in  a  dissenting  opin- 
ion in  the  same  case,  would  have  confined  the  rule  to  the  equities 
between  the  original  parties  to  the  contract.^  The  opinions  of 
Spencer  and  Tompkins,  JJ.,  were,  however,  recognized  as  the  cor- 
rect exposition  of  the  law  in  Bush  v.  Lathrop^  A  considerable 
number  of  authorities  are  cited  by  the  plaintiff  as  tending  to  show 
that  the  assignee  of  a  chose  in  action  is  only  subject  to  the  equities 
between  the  contractor  (the  assignor)  and  the  debtor,  and  not  to 
the  so-called  latent  equities  of  third  persons.  Such  cases  H'S,  James 
V.  3Iorey,^  Bloomer  v.  Henderson^  Mott  v.  Glark!^  and  others  of 
the  same  class,  were  i^eviewed  as  to  their  principle  or  specifically 
in  Busli  V.  Latlirof^  and  repudiated.  The  doctrine  of  Lord  Thur- 
low,  in  England,  and  of  Spencer  and  Tompkins,  JJ.,  already  con- 
sidered, was  thus  adopted  rather  than  that  of  Kent,  Ch.  J.  The 
law  of  some  of  the  other  states  undoubtedly  coincides  with  the 
view  of  Kent,  but,  since  the  decision  of  Busli  v.  Latlivop,  must 
be  regarded  as  without  authority  here 

"  The  plaintiff  cites,  to  support  his  view,  authorities  to  the 
effect  that  an  assignee  is  a  purchaser,  and  to  the  effect  '  that  a 
mortgage  is  in  form  a  conveyance  of  the  land,  and  an  assign- 
ment of  it  is  another  conveyance  of  the  same  land.'  These  cases, 
which  are  ver}^  numerous  in  the  law  books,  refer  only  to  the  po- 
sition of  a  mortgagee  or  assignee  in  a  court  of  law,,  and  were 
decided  in  England,  and  in  States  of  the  Union,  where  more 
technical  views  of  the  rights  of  a  mortgagee  in  a  court  of  law 
prevail  than  in  this  state.  They  are  of  no  force  in  a  court  of 
equity,  in  which  the  case  at  bar  is  assumed  to  be  pending,  for  in 
such  a  tribunal  a  mortgage  is  but  a  chose  in  action  and  security 
for  a  debt. 

"  Reference  is  also  made  to  a  class  of  cases  appearing  in  the  law 

1  Per  Lord  Thnrlow,  iu  Davies  v.  Aus-        *  22  N.  Y.  535. 

ten,  1  Vesey  Jun.  247.  5  2    Cowen,    298,    opinion    of    Suther- 

2  Bebee  v.  Bank  of  New  York,  1  Johns.     land,  J. 

(N.  Y.)  552,  per  Spencer,  J.,  and  549,  per  ^  g  Mich.  402. 

Tompkins,  J.  t  9  Pa.  St.  404. 

^  lb.  573.  8  22  N.  Y.  535. 
652 


WHETHER   ASSIGNEE   TAKES   SUBJECT    TO   EQUITIES.       [§  844. 

reports  of  a  number  of  the  states,  holding,  in  substance,  that 
when  a  mortgage  is  given  to  secure  a  negotiable  note,  which  is 
itself  transferred  before  maturity  for  value,  it  is  taken  by  the  as- 
signee free  from  all  equity.  It  is  agreed  that  these  authorities 
tend  to  show  that  the  mortgage  partakes  of  the  nature  of  the 
debt,  in  such  a  sense  that  only  the  direct  equities  between  the 
debtor  and  the  creditor  can  be  set  up  as  against  the  assignee. 
These  cases  have  not  yet  become  established  law  in  this  state. ^ 
If  sound,  they  must  be  made  to  rest  on  rules  of  law  attending 
the  transfer  of  negotiable  paper,  and  cannot  be  held  by  indirec- 
tion to  overthrow  a  rule  concerning  the  ordinary  bond  and  mort- 
gage which  has  become  fixed  in  our  jurisprudence." 

844.  Equities  in  favor  of  third  persons.  —  Whether  the  as- 
signee of  a  mortgage  debt  not  negotiable  should  be  affected  by 
latent  equities  existing  against  the  assignor  in  favor  of  third  per- 
sons, in  the  same  manner  that  he  is  affected  by  such  equities  ex- 
isting against  him  in  favor  of  the  mortgagor,  is  a  question  that 
has  been  frequently  discussed  in  recent  cases  in  the  State  of  New 
York.  In  the  case  of  Bush  v.  LatJirop,^  Mr.  Justice  Denio, 
after  examining  numerous  authorities,  came  to  the  conclusion  that 
the  supposed  distinction  is  without  foundation,  and  that  the  as- 
signee takes  the  security  subject  to  all  the  equities  that  third  per- 
sons could  enforce  against  the  assignor,  as  well  as  subject  to  those 
existing  between  the  parties  to  the  instrument.  In  that  case  the 
holder  of  the  mortgage  and  bond  assigned  them  by  an  absolute 
and  unconditional  bond,  as  security  for  a  debt  for  a  much  smaller 
sum  than  that  due  upon  the  mortgage,  and  his  assignee  trans- 
ferred the  mortgage  for  full  value  to  a  third  person  without 
notice  of  this  fact.  The  rule  above  stated  as  to  the  equities  of 
third  persons  was  applied  to  the  case,  and  it  was  held  that  the 
subsequent  assignee  took  the  security  subject  to  the  equity  of  the 
former  holder  of  the  mortgage,  to  redeem  it  upon  payment  of  the 
amount  of  the  debt  for  which  he  had  pledged  it. 

This  case,  in  the  application  of  this  rule  to  the  facts  presented, 
was  overruled  by  the  case  of  Moore  v.  Metropolitan  National  Bank;^ 

1  Carpenter  v.  Longan,  16  Wall.  (U.  S.)         "-  22  N.  Y.  535. 
271;    Kenicott   v.   Supervisors,    lb.   452;         ^  55  n.  y.  41. 
Taylor  v.   Page,   6   Allen,   86;  Croft   v. 
Bunster,  9  Wis.  510. 

663 


§  845.]  ASSIGNMENT    OF    MORTGAGES. 

although  the  rule  there  stated  as  to  tlie  equities  of  third  persons 
was  not  questioned.  The  latter  case  held  that  where  the  holder  of 
a  non-negotiable  chose  in  action  has  conferred  the  apparent  absolute 
ownership  of  it  upon  another  by  assignment,  one  who  purchases 
from  such  assignee  in  good  faith  for  value,  relying  upon  the  faith  of 
such  apparent  ownership,  obtains  a  valid  title  as  against  the  first 
assignor,  who  is  estopped  from  asserting  a  title  in  hostility  to  such 
apparent  ownership.  The  decision  is  based  altogether  upon  the 
doctrine  of  estoppel.  The  owner  of  the  security,  having  conferred 
apparent  ownership  upon  his  assignee  and  apparent  authority  to 
convey,  is  estopped  as  against  a  bond  fide  purchaser  to  deny  that 
ownership  or  that  authority.  Applying  this  rule  of  estoppel  to 
the  facts  of  the  case  presented  in  Bush  v.  Lathrop^  the  owner  of 
the  mortgage  and  bond  having  assigned  them  absolutely,  and  con- 
ferred upon  his  assignee  apparent  absolute  authority  over  the 
securities,  would  be  estopped  from  asserting  his  title  to  them 
against  one  who  had  purchased  upon  the  faith  of  the  assignee's 
apparent  authority  to  sell. 

The  rule  above  stated  as  to  the  equities  of  third  persons  has 
been  several  times  approved  in  recent  cases  before  the  Court  of 
Appeals  of  New  York ;  and  the  general  doctrine  is  there  well  es- 
tablished that  one  who  takes  an  assignment  of  a  bond  and  mort- 
gage takes  them  subject  not  only  to  any  latent  equities  that  exist 
in  favor  of  the  mortgagor,  but  also  subject  to  the  latent  equities 
in  favor  of  third  persons.^ 

845.  This  doctrine  was  recently  approved  in  Greene  v. 
Warniek^  by  the  Court  of  Appeals  of  New  York.^  It  appeared 
that  two  mortgages  for  equal  sums  were  executed  at  the  same 
time  upon  the  same  real  estate,  to  diffei^ent  persons,  to  secure  the 
purchase  money  for  the  same.  It  was  understood  and  agreed  be- 
tween the  mortgagees  at  the  time  of  the  delivery  of  the  mort- 
gages, that  they  should  be  equal  liens  in  all  respects  upon  the 
premises.  They  were  both  recorded  the  same  day,  but  one  fifteen 
minutes  before  the  other.     The  mortgage  first  recorded  was  as- 

1  Greene  v.  Warnick,    64  N.  Y.   220;  Bush  ?;.  Lathrop,  "commends  itself  as  a 

Trustees  of  Union  College  v.  Wheeler,  61  just  exposition  of  the  law,  as  well  upon 

N.  Y.  88;  Schafer  v.  Reilly,  50  N.  Y.  61  ;  principle  as  upon  authority." 

Mr.  Justice  Allen,  in  the  latter  case,  says  2  (54  n_  y.  220,  reversing  S.  C.  4  Hun, 

the  rule  as   stated   by   Judge   Denio,  in  703. 

654 


WHETHER   ASSIGNEE   TAKES   SUBJECT   TO   EQUITIES.       [§§  846,  847. 

signed  to  a  bond  fide  purchaser  for  value  without  notice  of  the 
agreement.  It  was  held  that  the  assignee  took,  subject  to  the 
equities  between  the  mortgagees,  and  could  claim  no  priority  of 
lien  by  reason  that  his  mortgage  was  first  recorded.  The  rule 
that  an  assignee  of  a  bond  and  mortgage  takes  them  not  only  sub- 
ject to  all  the  equities  existing  between  the  parties  to  the  instru- 
ment, but  to  the  equities  which  third  persons  could  enforce  against 
the  assignor,  was  fully  approved  and  adopted.  The  case  differed 
from  that  of  Moore  v.  Aletroi)olitan  Bank,  in  the  fact  tliat  the 
doctrine  of  estoppel  could  not  apply  ;  for  the  holder  of  the  mort- 
gage last  recorded  had  done  nothing  to  induce  the  assignee  to 
purchase  the  other  mortgage,  and  had  not  by  any  act  or  omission 
misled  him.  Estoppel  can  only  operate  against  the  party  whose 
act  created  it,  and  cannot  affect  the  rights  or  equities  of  other 
persons. 

846.  No  parol  trust  can  be  attached  to  a  mortgage.  —  An 
agreement  at  the  time  of  giving  a  mortgage  between  the  parties 
to  it  and  another  to  whom  the  mortgagor  was  indebted,  that  upon 
the  payment  of  the  mortgage  it  should  be  transferred  to  this  cred- 
itor as  security  for  the  debt  owing  him,  will  not  make  the  assign- 
ment to  him,  after  the  payment  of  the  mortgage  debt  to  the 
mortgagee,  valid  and  effectual,  so  as  to  enable  such  assignee  to 
foreclose  the  mortgage.  Such  an  assignment  is  simply  an  attempt 
to  tack  or  graft  upon  a  mortgage  duly  executed  under  the  hand 
and  seal  of  the  mortgagor  a  parol  mortgage  for  a  further  sura.^ 

847.  The  assignee  not  aflfected  by  equities  arising  after 
the  assignment.  —  Under  the  rule  that  the  assignee  of  a  mortgage 
takes  it  subject  to  the  equities  and  defences  existing  between  the 
original  parties  at  the  time  of  the  assignment,  all  equities  and 
defences  arising  between  them  subsequent  to  the  assignment,  and 
which  luid  no  existence,  and  were  simply  possibilities  at  the  time 
of  tlie  assignment,  are  excluded.  Even  a  fraud  committed  b}^  the 
assignor  after  the  assignment  cannot  affect  the  rights  of  the  as- 
signee.^ 

1  Ilubbell  V.  Blakeslcc,  8  Hun  (N.  Y.),  Cornish  v.  Bryan,  2  Stockt.  (N.  J.)   146; 

603;  and  see  Stodchird  v.  Hart,  23  N.  Y.  Coster  v.  Griswold,  4  Edw.   (N.   Y.)  Ch. 

SSe  ;  Bank  of  Utica  v.  Finch,  3  Barb.  (N.  374  ;  Murray  v.  Lylburn,  2  Johns.  (N.  Y.) 

Y.)  Ch.  293.  Ch.  442. 


2  Bush  V.  Cushman,  27  N.  J.  Eq.  131  ; 


655 


CHAPTER  XX. 

MERGER  AND  SUBROGATION. 
PART  I. 

MERGER. 

848.  Merger  at  law  and  in  equity.  —  In  law  a  merger  al- 
ways takes  place  when  a  greater  estate  and  a  less  coincide  and 
meet  in  one  and  the  same  person,  in  one  and  the  same  right, 
without  any  intermediate  estate.  The  lesser  estate  is  annihi- 
lated or  merged  in  the  greater.  But  "  upon  this  subject,"  says 
Sir  William  Grant,^  "  a  Court  of  Equity  is  not  guided  by  the  rules 
of  law.  It  will  sometimes  hold  a  charge  extinguished  where  it 
would  subsist  at  law  ;  and  sometimes  preserve  it  when  at  law  it 
would  be  merged.  The  question  is  upon  the  intention,  actual  or 
presumed,  of  the  person  in  whom  the  interests  are  united."  ^  This 
intention  is  a  question  of  fact,  and  is  to  be  tried  and  determined 
in  the  same  manner  as  are  other  issues.  It  comes  in  to  repel  the 
primd  facie  presumption  of  merger  which  arises  from  the  union 
of  the  legal  and  equitable  estates  in  the  same  person  at  the  same 
time.  His  intention  is  generally  determined  by  his  interest,  though 
all  the  attending  circumstances  are  to  be  considered.^ 

1  Forbes  v.  Moffatt,  18  Ves.  384.  Thatcher,  4   Gray   (Mass.),    526  ;    Evans 

-  In   England,  since   Nov.  1,1875,  no  w.  Kimball,  1   Allen   (Mass.),   240;  Wal- 

merger   takes  place  by  operation  of  law  lace    v.   Blair,    1    Grant    (Pa.)    Cas.    75; 

only,  of  any  estate,  the  beneficial  interest  Duncan  v.  Drury,  9  Pa.  St.  332  ;  Marshall 

in   which   would    not   be   deemed    to   be  v.  Wood,  5  Vt.  254  ;  Walker  v.  Baxter,  26 

merged  inequity.     Sup.  Ct.  of  Judicature,  Vt.  710;  Mj-ers  r.  Brownell,  1   D.   Chip. 

Act  1873,  c.  66,  §  25  ;  Act  1874,  c.  83,  §  (Vt.)  448 ;  Slocum  v.  Catlin,  22  Vt.  137  ; 

2.  Bullard  v.  Leach,  27  Vt.  491  ;  Downer  v. 

■^  St.  Paul  u.ViscountDudley  and  Ward,  Fox,  20  Vt.  388;  Robinson  v.  Leavitt,  7 

15   Ves.    167,    173;  Gibson   i;.  Crehore,  3  N.  H.  73  ;  Bailey  v.  Willard,  8  N.  H.  429  ; 

Pick.  (Mass.)  475  ;  Hunt  v.  Hunt,  14  lb.  Hutchins  i'.  Carleton,  19  N.  H.  489  ;  Weld 

374  ;  Tuttle  v.  Brown,  lb.  514  ;  Loud  v.  v.  Sabin,  20  N.  H.  533  ;  Johnson  v.  Elliott, 

Lane,   8   Met.    (Mass.)    517  ;    Grover    v.  26  N.  H.  69  ;  Heath  v.  West,  26  N.  H. 

656 


MERGER. 


[§  848. 


It  is  a  general  rule  that  when  the  legal  title  becomes  united 
with  the  equitable  title,  so  that  the  owner  has  the  whole  title,  the 
mortgage  is  merged  by  the  unity  of  possession.  But  if  the  owner 
has  an  interest  in  keeping  these  titles  distinct ;  or  if  there  be  an 
intervening  right  between  the  mortgage  and  the  equity,  there  is 
no  merger.^  Thus,  where  the  purchaser  of  the  equity  of  redemp- 
tion of  premises  already  subject  to  a  mortgage  made  a  second 
mortgage,  and  while  this  was  outstanding,  took  an  assignment  of 
the  first  mortgage,  which  he  afterwai'ds  assigned  to  a  third  per- 
son, it  was  held  that  the  first  mortgage  was  not  extinguished,  but 
that  the  second  moi'tgage  outstanding  prevented  a  merger. ^ 

To  effect  a  merger  at  law,  the  right  previously  held,  and  the 
right  subsequently  acquired,  must  coalesce  in  the  same  person 
and  in  the  same  right,  Avithout  any  other  right  intervening.^  "  In 
fact,"  says  Chief  Justice  Bellows  of  New  Hampshire,  in  a  recent 
case,*  "  the  doctrine  of  merger  springs  from  the  fact  that  when 
the  entire  equitable  and  legal  estates  are  united  in  the  same  per- 
son, there  can  be  no  occasion  to  keep  them  distinct,  for  ordina- 
rily it  could  be  of  no  use  to  the  owner  to  keep  up  a  charge  upon 


191;  Bell  v.  Woodward,  3-i  N.  H.  90; 
Drew  V.  Rust,  36  N.  H.  335;  Wilson 
V.  Kimball,  27  N.  H.  300 ;  Moore  v. 
Beasom,  44  N.  H.  215  ;  Hinds  v.  Ballou, 
44  N.  H.  620  ;  Stantons  v.  Thompson,  49 
N.  H.  272;  Hinchman  v.  Emans,  1  N.  J. 
Eq.  (Saxt.)  100;  Van  Wagenen  v.  Brown, 
26  N.  J.  L.  196;  Den  v.  Vanness,  10  N. 
J.  L.  (5  Halst.)  102;  Duncan  v.  Smith,  31 
N.  J.  L.  325  ;  Millspaugh  v.  McBride,  7 
Paige,  N.  Y.  509  ;  Skeel  v.  Spraker,  8  lb. 
182 ;  White  i;.  Knapp,  8  lb.  173;  Judd  v. 
Seeking,  62  N.  Y.  266  ;  Spencer  v.  Ayrault, 
10  N.  Y.  202;  Clift  v.  White,  12  N.  Y. 
519;  Bascom  y.  Smith,  34  N.  Y.  320; 
Shddon  v.  Edwards,  35  (N.  Y.)  279; 
Day  V.  Mooney,  4  Hun  (N.  Y.),  134; 
Angel  I'.  Boner,  38  Barb.  (N.  Y.)  425; 
Vanderkemp  v.  Shelton,  11  Paige  (N.  Y.), 
28  ;  James  v.  Johnson,  6  Johns.  (N.  Y.) 
Ch.  423  ;  Starr  v.  Ellis,  lb.  393  ;  Gardner 
V.  Astor,  3  lb.  53  ;  James  v.  Morey,  2  Cow. 
(N.  Y.)  285 ;  McGiven  v.  Wheelock,  7 
Barb.  (N.  Y.)  29;  Champney  v.  Coope 
34  lb.  539  ;  Kellogg  i;.  Ames,  41  lb.  218 ; 
Loonier  v.  Wheelwright,  3  Sandf.  (N.  Y.) 
VOL.  I.  42 


Ch.  157  ;  Hancock  v.  Hancock,  22  N.  Y. 
568;  Given  v.  Marr,  27  Me.  212;  Holden 
V.  Pike,  24  Me.  437  ;  Hatch  v.  Kimball, 
14  Me.  9  ;  Simouton  v.  Gray,  34  Me.  50; 
Hatch  V.  Kimball,  16  Me.  146  ;  Baldwin 
V.  Norton,  2  Conn.  161  ;  Lockwood  v. 
Sturdevant,  6  Conn.  387 ;  Mallory  v. 
Hitchcock,  29  Conn.  127;  Bassett  v. 
Mason,  18  Conn.  131  ;  Edgerton  v. 
Young,  43  111.  464 ;  Lyon  v.  Mcllvaine, 
24  Iowa,  9  ;  White  v.  Hampton,  13  Iowa, 
259  ;  Davis  v.  Pierce,  10  Minn.  376  ;  Sny- 
der V.  Snyder,  6  Mich.  470;  Carter  v. 
Taylor,  3  Head  (Tenn.),  30;  Grellet  v. 
Hcilshorn,  4  Nev.  526. 

1  Hancock  v.  Hancock,  22  N.  Y.  568 ; 
Hill  V.  Pixley,  63  Barb.  (N.  Y.)  200; 
Loud  V.  Lane,  8  Met.  (Mass.)  517;  Grel- 
let V.  Heilshorn,  4  Nev.  526  ;  Lyon  v.  Mc- 
Ilvain^  24  Iowa,  9  ;  Wilhelmi  v.  Leonard, 
13  lb.  330  ;  Warren  i'.  Warren,  30  Vt.  .530. 

•^  Evans  v.  Kimball,  1  Allen,  Mass.  240, 

a  Hunt  y.  Hunt,  14  Pick.  (Mass.)  384, 
per  Shaw,  C.J. ;  Lockwood  v.  Sturdevant 
6  Conn.  387,  per  Hosmer,  C.  J. 

*  Stantons  v.  Thompson,  49  N.  H.  272. 

657 


§  849.]  MERGER   AND   SUBROGATION. 

an  estate  of  which  he  was  seised  in  fee  simple ;  but  if  there  is  an 
outstanding,  intervening  title,  the  foundation  for  the  merger  does 
not  exist,  and  as  matter  of  law  it  is  so  declared." 

An  intervening  incumbrance  of  any  kind  is  generally  sufficient 
to  prevent  a  merger  of  the  mortgage  with  the  equity  of  re- 
demption, provided  the  incumbrance  be  not  one  which  the  owner 
has  assumed  to  pay,  or  one  against  which  he  is  estopped  from 
defending,  whether  such  incumbrance  be  an  attachment,^  a  levy 
of   execution,^  another    mortgage,^  or   any  other  lien. 

No  merger  occurs  when  the  mortgagee  purchases  the  equity 
of  redemption  at  an  execution  sale,  so  long  as  the  debtor's  right 
to  redeem  from  such  sale  continues.* 

849.  An  assignment  of  a  mortgage  to  one  of  two  tenants 
in  common  of  the  equity  of  redemption  does  not  discharge  it, 
but  he  may  foreclose  it.  His  own  interest  in  the  equity  does  not 
prevent  his  holding  under  the  higher  title.  The  co-tenant  is  not 
prejudiced,  for  he  may  redeem  by  payment  of  his  proportion  of 
the  debt.^ 

Where  one  who  has  purchased  part  of  the  premises  subject  to 
a  mortgage  takes  an  assignment  of  the  mortgage,  although  it 
may  operate  as  a  merger  in  respect  to  the  part  of  the  premises 
bought  by  him,  it  will  not  have  this  operation  in  respect  to  the 
part  not  bought.**  Nor  is  there  any  merger  when  a  mortgagee 
becomes  a  devisee  of  an  undivided  half  of  the  mortgaged  prem- 
ises.'' 

When  the  owner  of  an  equity  of  redemption  by  will  or  other- 
wise takes  an  undivided  interest  in  the  mortgage  debt,  as  a  tenant 
in  common  with  others,  no  merger  of  his  interest  takes  place. 
The  owner  of  any  part  of  a  mortgage  has  the  whole  premises  for 
his  security.  His  mortgage  cannot  be  extinguished  as  to  any  part 
or  interest  in  the  land,  whether  divided  or  undivided,  without 
his  assent.     The  fact  that  some  one  else  has  a  legal  interest  or 

1  Grover  v.  Thatcher,  4  Gray  (Mass.),  ^  Wilhelmi  i;.  Leonard,  13  Iowa,  330; 
526.                                                       •  King  v.  McVickar,  3  Sandf.  (N.  Y.)  Ch. 

2  New  England  Jewelry  Co.  v.  Merriara,  192  ;  Casey  v.  Buttolph,  12  Barb.  (N.  Y.) 
2  Allen  (Mass.),  390.  637  ;  Pike  v.  Goodnow,  12  Allen  (Mass.), 

3  Bell  V.  Woodward,  34  N.  H.  90 ;  Dut-  472. 

ton  V.  Ives,  5  Mich.  515.  7  Sahler  v.   Signer,  44  Barb.   (N.  Y.) 

*  Southworth  v.  Scofield,  51  N.  Y.  513.     606. 
6  Barker  v.  Flood,  103  Mass.  474. 

658 


MERGER.  [§§  850-852. 

share  in  the  security  prevents  the  blending  of  the  interests  in  such 
case.i  And  so,  on  the  other  hand,  there  is  no  merger  when  a 
mortgagee  of  the  entire  premises  becomes  a  devisee  of  an  undi- 
vided part  of  the  equity  of  redemption.  He  is  entitled  to  be  pro- 
tected by  holding  his  entire  mortgage  against  the  entire  premises.^ 

850.  The  assignment  of  a  mortgage  to  the  wife  of  the  mort- 
gagor operated  at  common  law  as  a  discharge  of  it.  But  under 
the  statutes  now  in  force  in  all  or  nearly  all  our  states,  authoriz- 
ing married  women  to  buy  and  sell  real  estate,  such  an  assign- 
ment would  not  operate  as  a  discharge.^ 

A  husband  may  purchase  and  hold  a  mortgage  given  by  his 
wife  upon  her  property,  in  which  he  has  also  joined.  It  is  not 
merged  by  an  assignment  to  him.  Much  less  is  it  satisfied  in  the 
hands  of  another  person  to  whom  it  is  assigned  upon  the  pay- 
ment of  the  consideration  by  the  husband.* 

851.  Marriage  of  mortgagee  and  mortgagor.  —  Under  the 
statutes  in  regard  to  the  rights  of  married  women  in  their  sepa- 
rate property,  now  generally  in  force,  the  marriage  of  a  single 
woman  who  holds  a  mortgage  with  the  mortgagor  does  not  extin- 
guish the  mortgage  lien  or  the  debt.^ 

Neither  does  the  execution  by  the  husband  and  wife  after  mar- 
riage, of  a  mortgage  upon  the  same  premises  to  a  third  person, 
discharge  the  lien  of  the  wife's  mortgage  against  her  husband,  if 
she  uses  no  words  of  release  to  operate  upon  her  mortgage,  and 
it  is  apparent  from  the  instrument  that  she  joined  merely  to 
release  her  inchoate  right  of  dower.*^ 

852.  In  case  the  equitable  estate  has  been  in  any  way  ex- 
tinguished the  doctrine  of  merger  has  no  application.  Thus, 
where  a  mortgagee  allowed  the  mortgaged  premises  to  be  sold 
under  a  prior  judgment,  and  failed  to  redeem  within  the  time 
allowed,  but  afterwards  obtained  a  conveyance  of  the  premises 

1  Clark  V.  Clark,  56  N.  H.  105  <  Faulks  i'.  Dimock,  27  N.  J.  Eq.  65. 

2  Sahler  v.  Signer,   44   Barb.    (N.  Y.)         &  Power  v.  Lester,  23  N.  Y.  527. 

606.  «  Power   u.  Lester,  23   N.    Y.   527;  17 

3  Bean  v.  Bootbby,  57  Me.  295  ;  Bemis  How.  Pr.  413  ;  Gillig  v.  Maass,  28  N.  Y. 
V.   Call,    10   Allen    (Mass.),   512;  Model     191. 

Lodging  House  Ass'n  v.  City  of  Boston, 
114  Mass.  133. 

659 


§§  853,  854.]  MERGER   AND   SUBROGATION. 

from  the  purchaser  under  execution  sale,  his  mortgage  title  was 
wholly  gone,  and  there  was  nothing  to  merge  in  the  legal  estate. 
Neither  could  his  purchase  have  the  effect  in  any  way  to  revive 
his  mortgage  as  a  lien,  and  enable  him  to  transfer  it  to  another.^ 

853.  An  assignee  who  has  reassigned  is  estopped  from 
claiming  a  merger.  —  After  the  owner  of  lands  has  taken  an 
assignment  of  the  mortgage  to  himself,  and  then  assigned  it  to 
another  as  a  valid  security,  heis  estopped  from  insisting,  as  against 
the  assignee  or  any  one  claiming  under  him,  that  it  had  merged 
and  disappeared  iu  the  equity  of  redemption.^  It  is  immaterial 
in  such  case  that  the  remedy  at  law  upon  the  note  which  accom- 
ptmied  the  mortgage  was  barred  ;  that  does  not  affect  the  validity 
of  the  mortgage  or  the  remedy  upon  it.  It  is  immaterial,  too,  that 
the  person  who  claims  the  benefits  of  a  merger  is  a  purchaser  from 
the  former  owner  by  a  deed  made  after  the  assignment  of  the 
mortgage  by  his  grantor  was  recorded,  for  then  the  same  record 
which  informed  him  of  the  facts,  which  at  common  law  would 
constitute  a  merger,  also  notified  him  of  the  assignment  which 
created  the  estoppel.^  If  he  has  purchased  by  deed  of  warranty 
he  may  have  remedy  upon  the  covenants ;  but  lie  cannot  resist 
the  foreclosure  of  the  mortgage.* 

854.  By  selling  the  estate  free  from  incumbrances,  he  may 
be  estopped  on  the  other  hand,  as  against  the  purchaser  at  least, 
from  saying  that  there  was  no  merger.^ 

A  mortgagee  having  purchased  the  equity  of  redemption  while 
it  was  subject  to  a  second  mortgage,  afterwards  sold  the  land  to 
a  third  person  for  a  price  sufficient  to  pay  both  mortgages,  as 
well  as  the  sura  paid  for  the  equity  of  redemption.  Although 
his  prior  lien  was  not  merged  by  his  purchase,  it  was  regarded 
as  satisfied  by  his  sale,  so  that  on  a  subsequent  foreclosure  of  the 

1  Hill  V.  Pixley,  63  Barb.  (N.  Y.)  200.  constructive  notice  of  the  existence  of  the 

2  Powell  V.  Smith,  30  Mich.  451  ;  Kel-  mortgage.  It  is  upon  record.  He  then 
logg  V.  Ames,  41  N.  Y.  259,  reversing  41  steps  into  the  former  owner's  place ;  he 
Barb.  218  ;  Skeel  v.  Spraker,  8  Paige  (N.  takes  his  interest  and  his  rights  in  the 
Y.),  182.  land,  and   no   more;  the   estoppel  which 

8  Powell  u.  Smith,  supra.  was  controlling  the  former  owner  is  also 

*  Kellogg  V.  Ames,  supra.     The  court,  controlling  him. 

Murray,  J.,  delivering  the  opinion,  says,  ^  Bulkeley  v.  Hope,  1  Kay  &  J.   482  ; 

that   the   purchaser   takes   the   deed  with  1  Jur.  N.  S.  864. 

660 


MERGER.  [§§  855,  856. 

second  mortgage  the  proceeds  were  first  applied  to  the  payment 
of  the  second  mortgage.^ 

855.  The  intention  of  the  parties  at  the  time  of  the  pay- 
ment of  the  mortgage  determines  the  effect  of  such  payment. 
If  it  is  clear  that  there  was  then  no  intention  on  the  part  of  the 
person  making  the  payment,  either  actual  or  to  be  implied  from 
the  condition  of  things  then  existing,  to  keep  the  mortgage  alive, 
it  cannot  afterwards,  upon  a  change  of  his  intention,  or  upon  a 
change  in  the  surrounding  circumstances,  be  regarded  as  a  subsist- 
ing security .2  Thus,  where  a  mortgage  was  paid  without  an  as- 
signment or  discharge  of  it  being  made  at  the  time,  and  no  agree- 
ment was  made  for  any  future  assignment  of  it,  and  the  owner 
of  the  estate  eighteen  years  afterwards  conveyed  the  land  by  war- 
ranty, and  his  grantee  obtained  an  assignment  of  the  mortgage 
to  the  first  purchaser,  it  was  held  that  nothing  passed  by  the  as- 
signment because  it  had  already  been  discharged  by  the  pay- 
ment.^ 

856,  Intention  expressed.  —  Although  the  question,  whether 
there  is  a  merger,  depends  not  so  much  upon  the  kind  or  form  of 
instrument  by  which  one  estate  is  transferred  to  the  holder  of  the 
other  as  upon  the  intention  of  the  parties,  yet  if  the  intention  be 
declared  in  such  instrument  it  may  control  the  construction  of  its 
effect.  But  even  as  against  the  expressed  intention,  that  which 
is  inferred  from  the  relation  of  the  parties  to  each  other  and  to 
others,  or  from  their  own  interests,  may  be  sufficient  to  control 
the  construction,  especially  if  the  expressions  of  intention  be 
vague  or  doubtful. 

A  recital  in  a  deed  from  a  mortgagor  to  his  mortgagee  of  the 
mortgaged  land,  that  the  deed  was  made  to  cancel  the  mortgage, 
may  conclude  the  grantee  from  denying  that  fact,  so  far  as  the 
intention  was  concerned  ;  but  the  mortgage  and  the  notes  remain- 
ing in  his  possession  by  agreement,  he  may  rely  upon  his  mort- 
gage title  as  against  an  intervening  attachment.* 

1  Webb  V.  Meloy,  32  Wis.  319.  108  ;  Aiken  v.  Milwaukee  &  St.  P.  R.  Co. 

2  Ciiampney  r.  Coope,  34  Barb.  (N.  Y.)  37  Wis.  469;  Hunt  v.  Hunt,  14  Pick. 
539;  Loome  v.  Wheelwright,  3  Sandf.  (N.     (Mass.)  374,  383. 

Y.)  Ch.   157;  Gardner  i;.  Astor,  3  Johns.         »  Given  v.  Marr,  27  Me.  212. 
(N.  Y.)  Ch.  53  ;  Cole  v.  Edgerly,  48  Me.        *  Crosby  v.  Chase,  17  Me.  369. 

661 


§  857.]  MERGER  AND  SUBROGATION. 

Where  the  upholding  of  a  separate  mortgage  title  is  essential  to 
the  interests  of  the  owner,  a  reference  in  a  deed  to  the  mortgage 
as  "  having  been  cancelled  by  assignment "  will  not  effect  a 
merger.^ 

On  the  other  hand  when  a  conveyance  to  a  mortgagee  is  made 
expressly  subject  to  a  right  of  dower,  whereby  the  intention  of 
the  parties  is  manifest  that  such  a  right  should  be  preserved,  the 
purchaser  will  not  be  allowed  to  set  up  the  mortgage  as  a  subsist- 
ing title  against  this  right.^ 

When  a  person  holding  an  equity  of  redemption,  by  a  convey- 
ance fraudulent  as  against  the  grantor's  creditors,  takes  from  the 
mortgagee  a  quitclaim  deed  of  all  his  interest  in  the  premises, 
containing  this  clause  :  "  Which  said  mortgage  is  hereby  can- 
celled and  discharged,  the  said  "  grantor  "  having  recently  con- 
veyed his  interest  in  the  premises  to  "  the  grantee,  this  amounts 
to  an  assignment,  and  not  a  merger,  of  the  mortgage,  if  the  cred- 
itors interfere  and  take  the  equity.^ 

When  one  erroneously  supposing  that  he  owned  the  equity  of 
redemption  of  land  subject  to  two  mortgages  paid  to  the  first 
mortgagee  the  amount  due  on  his  mortgage,  and  took  a  deed  in 
which  the  mortgagee  released,  granted,  and  sold  his  interest  in  the 
land,  "meaning  hereby  to  release  all  the  right  I  have  in  the  prem- 
ises hj  virtue  of  said  mortgage,  the  aforesaid  sum  having  been 
this  day  paid  me  in  discharge  of  said  mortgage,"  this  deed  was 
held  to  operate  as  a  grant  of  the  legal  estate,  or  a  satisfied  mort- 
gage, and  not  as  an  assignment  of  the  debt.  The  purpose  of  the 
mortgagee  in  making  the  deed  was  to  be  taken  into  consideration 
in  construing  it,  and  this  purpose  was  to  acknowledge  payment  of 
the  debt  and  to  pass  the  legal  estate.  This  explanation  of  the 
intent  of  the  parties  avoids  the  inference  that  might  be  made 
from  the  other  parts  of  the  deed,  that  the  debt  was  thereby  as- 
signed. Without  this  evidence  of  payment  furnished  by  the  deed 
itself,  the  fact  that  it  was  paid  and  not  assigned  might  be  proved 
by  parol.'* 

857.    Merger  prevented  by  expressed  intention  to  the  con- 

1  Bean  v.  Boothby,  57  Me.  295.  •*  "Wade   v.  Howard,   11   Pick.  (Mass.) 

2  Campbell  v.  Knights,  24  Me.  332.  289  ;  S.  C.  6  lb.  492. 
*  Crosby  v.  Taylor,  15   Gray  (Mass.), 

64. 

662 


MERGER.  [§  858. 

trary.  —  The  intended  construction  of  a  deed  of  release  from  tlie 
owner  of  the  equity  of  redemption  to  the  holder  of  the  mortgage 
may  be  expressed  in  the  deed  itself,^  as  for  instance  by  a  declara- 
tion that  the  deed  shall  not  operate  as  a  merger  of  title,  except  at 
the  election  of  the  grantee;  in  which  case  there  will  be  no  merger, 
unless  evidence  tending  to  show  such  election  on  his  part  be 
shown.2  An  assignment  of  the  mortgage  paid  off  might  be  taken 
to  a  trustee  with  an  express  declaration  that  the  object  was  to 
preserve  the  priority  of  the  lien  ;  ^  but  the  conveyance  alone 
without  the  declaration  is  not  regarded  as  conclusive* 

When  there  is  no  evidence  of  the  intention  of  the  owner  in 
uniting  the  legal  and  equitable  estates  in  himself,  it  is  proper  to 
presume  that  he  intended  that  effect  which  is  the  most  beneficial 
to  himself.  Therefore  if  the  estate  be  subject  to  other  incum- 
brances, which  he  is  under  no  obligation  to  pay,  and  it  is  better 
for  him  to  preserve  the  lien  of  the  prior  mortgage  rather  than  to 
extinguish  it,  and  let  the  next  subsequent  incumbrance  into  its 
place  of  priority,  these  facts  may  be  taken  as  sufficient  ground 
for  inferring  that  his  intention  was  to  preserve  the  mortgage  leather 
than  to  extinguish  it,^ 

858.  Whether  the  release  of  a  mortgage  constitutes  a  dis- 
charge or  an  assignment  depends  not  so  much  upon  the  form 
of  the  instrument  as  upon  the  relations  of  the  parties  to  the  es- 
tate, and  their  presumed  intent  derived  from  the  circumstances 
under  which  the  conveyance  is  made.  If  the  release  is  to  a 
party  whose  dutj^  it  is  to  extinguish  the  mortgage  for  the  benefit 
of  another,  it  will  be  held  to  operate  as  a  discharge.^  If  the 
money  be  paid  by  one  who  has  assumed  the  duty  of  paying  the 
debt,  either  by  contract  with  the  mortgagor  or  with  those  who 
may  have  succeeded  to  his  rights,  this  must  be  taken  as  regards 
other  subsequent  interests  as  a  payment ;  consequently,  when  one 
who  has  purchased  land  by  a  deed  containing  an  express  stipula- 
tion that  he  shall  assume  and    pay  an  existing   mortgage  debt 

1  Bailey  v.  Richardson,  9  Hare,  734;  i-.  Wright,  1  Sim.  &  St.  369;  and  see 
and  see  Tyrwhitt  r.  Tyrwhitt,  32  Beav.     Gunter  y.  Gunter,  23  Beav.  571. 

244  ;  Wilkes  v.  Collin,  L.  R.  8  Eq.  338.  ^  Earl  of  Clarendon  i'.  Barham,  1  Y.  & 

2  Spencer  v.  Ayrault,  10  N.  Y.  202.  C.  C.  C.  688  ;  Davis  v.  Barrett,  14  Beav. 
8  Bailey  i'.  Richardson,  supra.                     542  ;  Hatch  v.  Skelton,  20  Beav.  453. 

*  Hood  y.  Phillips,  3  Beav,  513;  Parry        6  Wadsworth   v.  Williams,    100   Mass. 

126 ;  see  Wade  v.  Beldmeir,  40  Mo.  486. 

663 


§§  859-861.]  MERGER   AND   SUBROGATION. 

upon  it,  payment  by  him  operates  as  a  discharge  of  the  mortgage, 
whether  he  take  an  assignment  of  the  mortgage,  an  acknowledg- 
ment of  payment,  or  a  release.^ 

859.  But  a  deed  of  quitclaim  from  the  mortgagee  to  a  third 
person,  who  pays  the  amount  due  upon  a  mortgage  at  the  re- 
quest or  with  the -consent  of  the  mortgagor,  operates  generally  as 
an  assignment,  and  not  as  an  extinguishment  of  the  mortgage,^ 
unless  the  latter  effect  be  intended.  But  a  quitclaim  deed  by  the 
holder  of  the  mortgage,  whether  the  original  mortgagee  or  his 
assignee,  to  the  owner  of  the  equity  of  redemption,  generally  op- 
erates to  discharge  the  mortgage,  unless  there  be  a  good  reason 
why  it  should  not  have  this  effect.^ 

860.  A  bequest  of  the  mortgage  to  the  mortgagor  would 
generally  merge  the  lien.  But  if  the  interest  of  the  mortgage  be 
given  to  another  for  life,  and  the  principal  of  it  to  the  mortgagor 
afterwards,  the  mortgage  is  kept  alive  and  may  be  foreclosed 
during  the  lifetime  of  the  person  entitled  to  the  interest.* 

861.  Parol  evidence  that  an  assignment  of  a  mortgage  was 
intended  to  be  a  discharge  is  admissible  only  for  the  purpose  of 
proving  fraud.^  The  legal  effect  of  a  conveyance  cannot  be 
changed  by  parol  evidence.*^  Yet  such  evidence  is  admissible  to 
show  the  consideration  upon  which  the  conveyance  was  made,  and 
to  show  the  whole  transaction  where  the  conveyance  constitutes 
only  a  part  of  it ;  and  in  this  way  it  may  appear  that  the  pur- 
chaser is  under  obligation  to  pay  the  mortgage  debt,  so  that  an  as- 
signment of  the  mortgage  to  him  constitutes  a  merger.'^ 

1  Kilborn  v.  Robbins,  8  Allen  (Mass.),  expectancy,"  and  it  was  regarded  as  an 
466,  undoubted  discharge. 

2  Freeman  v.  M'Gaw,  15  Pick.  (Mass.)         *  Hancock  v.  Hancock,  22  N.  Y.  568. 
82  ;  Hunt  v.  Hunt,   14  lb.  374.     Contra,        ^  Astley   v.  Milles,    1    Sim.    298,  345 
Johnson  v.  Lewis,  13  Minn.  364.  Howard  xx..  Howard,  3  Met.  (Mass.)  548 

8  Jerome    v.   Seymour,    Harr.    (Mich.)  Wade  v.  Howard,  11   Pick.  (Mass.)  289 

357  ;  Bassett   v.  Hathaway,  9   Mich.  28.  6  lb.  492. 

In  this  case  the  holder  of  the  mortgage  ^  McCabe  v.   Swap,  14  Allen  (Mass.), 

conveyed  to  a  purchaser  of  the  equity  of  188. 

redemption  all  his  "  right,  title,  interest,  ^  prey  y.  Vanderhoof,  15  Wis.  397;  Fiske 

claim,  and   demand,  both   at  law  and  in  v.    McGregory,  34  N.   H.  414;    and    see 

equity,   whether  by   deed,   mortgage,  or  Miller  v.  Fichthom,  31  Pa.  St.  252,  259. 
otherwise,  and  as  well  in  possession  as  in 

664 


MERGER.  [§§  8G2,  863. 

862.  Merger  in  new  security  or  judgment.  —  It  is  elsewhere 
noticed  that  a  mortgage  is  not  necessarily  or  even  usually  merged 
by,  taking  a  new  mortgage  upon  the  same  property  for  the  old 
debt  and  further  advances,  or  for  the  old  debt  and  interest  accrued 
upon  it,  or  assessments  paid  upon  the  property  ;  if  the  original 
mortgage  has  not  been  released,^  the  debt  is  not  merged  so  as 
to  affect  the  security  by  obtaining  a  judgment  upon  it,  unless  it 
is  satisfied  in  whole  or  in  part,  when  the  debt  is  of  course  extin- 
guished to  the  extent  of  the  sum  realized  by  the  execution.^ 

When  additional  security  is  taken  for  a  mortgage  debt  by  a 
new  mortgage  upon  the  same  or  other  property,  a  merger  of  the 
original  security  may  be  very  readily  prevented  by  a  recital  in 
the  instrument  creating  the  new  security,  that  it  is  given  by  way 
of  further  security,  or  as  collateral  to  the  old.^  Of  course  in 
most  cases,  the  nature  of  the  transaction  and  the  relations  of  the 
parties  will  be  sufficient  to  show  the  intention  without  any  such 
declaration. 

863.  A  mortgage  will  not  be  kept  alive  in  aid  of  a  fraud 
or  wrong,  although  in  equity  a  mortgage  substantially  satisfied 
may  be  kept  alive  when  this  is  requisite  to  the  advancement  of 
justice  ;  this  is  never  allowed  when  the  result  will  be  through  the 
forms  of  law  to  aid  in  perpetrating  a  fraud  or  an  injury.'^ 

Generally,  an  assignment  of  the  mortgage  cannot  be  enforced. 
It  is  the  mortgagee's  duty  to  discharge  merely.^  But  whenever  a 
decree  is  made  that  the  mortgage  upon  payment  or  redemption  be 
assigned,  the  decree  should  be  limited  so  as  not  to  prejudice  the 
mortgagee  in  respect  to  any  other  liens  he  may  have  acquired 
upon  the  property,  whether  by  attachment  or  otherwise.^  In 
New  York,  however,  it  is  held  that  an  assignment  may  be  en- 
forced when  the  mortgage  is  paid  bj'^  one  who  is  under  no  obliga- 
tion to  pay  it.'  A  mortgagor  who  has  sold  the  mortgaged  prop- 
erty subject  to  the  mortgage,  upon  being  compelled  subsequently 

1  Tenison  v.  Sweeney,  1  J.  &  L.  710.         Y.)  22  ;  Wortliington   v.  Morgan,  16  Sim. 

2  See  Bell  v.  Banks.  3  Man.  &  G.  258  ;    547. 

3  Scott  N.  R.  497  ;  Higgins,  Exp.  3  De  ^  gee  §  1086  ;  also,  James   v.  Biou,  3 

G.  &  J.  33.  Sw.  234  ;  Colyer  v.  Colyer,  9  L.  T.  N.  S. 

3  Twopenney  v.  Young,  3  B.  &  C.  208;  214;  Dunstan  v.  Patterson,  2  Ph.  341  ; 
Pennell,  Exp.  2  M.  D.  &  De  G.  273  ;  Whit-  Anon.  2  Mol.  505. 

bread,  Exp.  2  M.  D.  &  De  G.  415.  ^  Cilley  v.  Huse,  40  N.  H.  358. 

*  McGiven  v.  Wheelock,  7   Barb.  (N.        ''  §  1087. 

665 


§§  864,  865.]      MERGER  AND  SUBROGATION. 

to  pay  the  debt  is  subrogated  to  the  rights  of  the  mortgagee,  and 
may  require  from  him  an  assignment  of  the  bond  and  mortgage, 
and  if  upon  tender  of  the  amount  the  mortgagee  refuses  to  assign, 
he  may  be  compelled  to  do  so  by  action. ^ 

864.  When  a  mortgage  debt  is  paid  by  one  who  is  bound  by 
contract  to  pay  it,  an  assignment  of  it  to  him  upon  paj^ment 
operates  as  a  discharge ;  and  he  will  not  be  allowed  to  hold  it  as 
a  subsisting  incumbrance,  as  the  payment  was  in  pursuance  of  his 
agreement,  and  may  be  regarded  as  made  with  the  mortgagor's 
money.2  Under  this  rule  a  mortgagor  is  not  allowed,  after  having 
obtained  a  transfer  of  a  first  mortgage  made  by  himself,  to  set  it 
up  against  another  mortgage  of  later  date,  which  he  has  also 
made ;  and  the  rule  applies  equally  in  case  he  has  obtained  the 
first  mortgage  title  by  purchasing  at  a  sale  under  the  power.^ 

865.  Assignment  to  one  who  has  assumed  the  payment  of 
the  mortgage.  —  The  purchaser  of  land  subject  to  a  mortgage 
which  he  has  assumed  and  agreed  in  the  conveyance  to  himself  to 
pay,  upon  taking  an  assignment  of  it,  thereby  pays  and  satisfies 
it  so  far  as  his  grantor  is  concerned  ;  ^  and  as  to  his  grantor,  the 
mortgage  is  paid  and  satisfied  when  such  purchaser  has  paid  the 
mortgage  and  had  an  assignment  of  it  made  to  a  third  person. 
Not  only  is  the  mortgage  extinguished  when  it  is  paid  by  a  pur- 
chaser who  has  assumed  the  payment  of  it,  but  also  when  it  is 
paid  by  his  grantee,  or  by  any  grantee  after  successive  convey- 
ances.^ The  premises  in  such  case  become  the  primary  fund  for 
the  payment  of  the  mortgage,  and  whoever  acquires  that  fund  and 
the  mortgage  also  must  be  regarded  as  having  applied  the  fund  to 
the  payment  of  the  mortgage.^ 

But  the  taking  of  a  deed  containing  a  recital  that  the  premises 
are  "  subject  to  a  mortgage  "  does  not  import  a  promise  on  the 
part  of  the  purchaser  to  pay  the  mortgage ;  and  does  not  prevent 

1  Johnson  v.  Zink,  51  N.  Y.  333.  6  De  G.,  M.  &  G.  638 ;  Johnson  v.  Web- 

2  Brown   v.  Lapham,  3  Gush.  (Mass.)     ster,  4  De  G.,  Mac.  &  G.  474. 

554;  Strong  r.  Converse,  8  Allen  (Mass.),        *  Frey    v.   Vanderhoof,    15    Wis.   397; 

559  ;  Butler  v.  Seward,  10  lb.  466;  Be-  Mickles  v.  Townsend,  18  N.  Y.  575  ;  Rus- 

mis   V.    Call,  10  lb.    512  ;  Wadsworth  v.  sell  v.  Pistor,  7  N.  Y.  171. 
Williams,  100  Mass.  126.  5  pitch  v.  Cotheal,  2  Sandf.  (N.  Y.)  Ch 

8  Otter  V.  Lord  Vaux,  2  K.  &  J.  650  ;  29. 


666 


6  Lilly  V.  Palmer,  51  111.  331. 


MERGER.  [§  866. 

his  holding  the  mortgage  as  a  subsisting  title  upon  a  subsequent 
assignment  of  it  to  him.^ 

866.  This  principle  is  of  frequent  application  in  determin- 
ing the  right  of  the  mortgagor's  widow  to  dower.  —  The 
widow  is  clearly  dowable  in  an  equity  of  redemption ;  but  if  she 
has  relinquished  her  right  of  dower  in  the  mortgage,  she  cannot 
recover  it  against  the  mortgagee  or  his  assignee  in  possession,  un- 
less the  mortgage  has  been  assigned  to  one  who  is  under  obliga- 
tion to  pay  and  discharge  the  mortgage.^  Her  dower  is  subject 
to  the  mortgage,  and  if  this  be  redeemed  by  the  heir  or  purchaser, 
or  by  any  one  interested  in  the  estate  who  is  not  bound  to  pay  the 
debt,  in  order  to  avail  herself  of  this  right  she  is  obliged  to  contrib- 
ute her  proportion  of  the  charge,  according  to  the  value  of  her 
interest.^ 

If,  however,  the  purchaser  of  the  equity  of  redemption  from  the 
original  mortgagor  has  assumed  and  agreed  to  pay  the  mortgage, 
and  the  wife  of  the  mortgagor  has  released  her  dower  in  the 
mortgage  but  not  in  the  deed  to  the  purchaser,  he  cannot,  upon 
taking  an  assignment  of  the  mortgage,  set  it  up  against  the 
claim  of  the  widow  of  the  mortgagor  for  her  dower,  but  the  as- 
signment will  be  held  to  operate  as  a  discharge,  and  the  widow 
will  be  entitled  to  her  dower  in  the  whole  estate.* 

Where  a  mortorasfee  who  had  entered  for  foreclosure  convevs 
his  interest  by  quitclaim  deed  to  one  who  has  purchased  the 
equity  of  redemption  from  the  mortgagor's  assignee  in  insolvency, 
the  mortgage  is  not  extinguished  by  merger,  so  as  to  let  in  a  right 
of  dower  in  the  mortgagor's  widow  who  released  dower  in  the 
mortgage.^ 

This  rule  is  fully  approved  in  a  recent  case  in  Missouri,  where 
a  purchaser  of  an  equity  of  redemption  from  an  assignee  in  in- 
solvency of  the  mortgagoi",  without  taking  an  assignment  of  the 
mortgage,  or  making  any  attempt  to  keep  it  alive,  paid  it  off. 
Although  the  wife  of  the  mortgagor  relinquished  dower  in  the 
mortgage,  yet,    the    mortgage   having    been    cancelled   and    dis- 

1  Strong  V.  Converse,  8  Allen  (Mass.),  ^  Norris  v.  Morrison,  45  N.  H.  490. 
557;  Piker.  Goodnow,  12  lb.  472 ;  Camp-  *  McCabe  v.  Swap,   14  Allen  (Mass.), 
bell  V.  Knights,  24  Me.  332.     See  §  748.  188. 

2  Farwell  v.  Cotting,  8  Allen  (Mass.),  '  Savage  v.  Hall,  12  Gray  (Mass.),  363. 
211. 

667 


§  867.]  MERGER  AND  SUBROGATION. 

charged  without  any  mistake  on  the  part  of  purchaser  in  doing 
so,  the  wife  upon  the  death  of  her  husband  was  held  to  be  en- 
titled to  dower  in  the  whole  estate. ^ 

Bat  where  the  assignee  in  insolvency  of  the  mortgagor  pays  the 
mortgage,  in  which  the  wife  had  released  dower,  out  of  the  assets 
of  the  estate,  and  takes  an  assignment  of  the  mortgage  to  himself, 
it  remains  an  outstanding  title  against  which  the  widow  of  the  in- 
solvent cannot  have  dower.^  So,  if  the  mortgage  be  discharged 
by  the  heir  or  other  person  claiming  under  the  husband,  with 
no  obligation  imposed  upon  him  to  pay  the  mortgage,  the  widow 
takes  her  dower  subject  to  the  incumbrance  of  the  mortgage  debt. 
And  even  where  the  purchaser  of  an  equity  of  redemption  from 
the  administrator  of  an  insolvent  estate  gave  a  bond  obligating 
himself  to  pay  the  mortgage  debt,  it  was  held  that  he  might  set 
up  the  mortgage  title  against  the  widow,  because  the  obligation 
to  pay  the  debt  is  in  such  case  to  be  regarded  merely  as  a  per- 
sonal contract  of  indemnity,  in  which  the  widow  had  no  interest.^ 

But  if  an  heir,  for  the  purpose  of  preventing  a  sale  of  the  real 
estate  of  the  deceased  for  the  payment  of  debts,  gives  a  bond  for 
their  payment  and  takes  an  assignment  of  a  mortgage  upon  part 
of  the  real  estate  to  himself,  the  bond  may  be  regarded  as  supply- 
ing the  place  of  assets,  which  would  otherwise  have  been  derived 
from  a  sale  of  the  lands,  which  would  have  left  the  rights  of 
dower  and  homestead  unaffected  ;  and  it  is  suggested  that  in  such 
case  the  assignee  should  not  be  allowed  to  defeat  these  rights  by 
holding  the  mortgage  as  an  outstanding  title  and  foreclosing  it; 
and  it  was  held  that  at  any  rate  the  heir  could  not  do  this  after 
the  estates  of  dower  and  homestead  had  in  fact  been  set  out  to 
the  widow,  before  the  payment  of  the  mortgage  debt,  with  his 
assent.^ 

867.  Payment  by  one  who  has  warranted  against  incum- 
brances. —  One  who  has  executed  two  mortgages  to  different 
persons  upon  the  same  land,  with  covenants  of  warranty,  upon 
redeeming  the  fii'st  mortgage,  in  fact  pays  his  own  debt,  and 
thereby  discharges    the  mortgage,  and  cannot  set   it  up  as  the 

1  Atkinson  v.  Angert,  46  Mo.  515.  s  Gibson   v.   Crehore,  3   Pick.  (Mass.) 

2  Saro:eant   v.  Fuller,  105    Mass.   119;  475;  and  5  Pick.  (Mass.)  147. 
see,  however,  Atkinson  v.  Stewart,  46  Mo.  *  King  v.  King,  100  Mass.  224. 
510;  Jones  v.  Bragg,  33  Mo.  337. 

668 


MERGER.  [§  868. 

ground  of  a  claim  to  redeem  the  second  after  that  has  been  fore- 
closed. The  payment  of  the  mortgage  when  it  was  his  duty  to 
pay  it  gives  him  no  right  to  be  regarded  as  an  equitable  assignee 
of  it,  and  to  be  subrogated  to  the  rights  of  the  first  mortgagee. 
The  covenants  of  warranty  in  the  second  mortgage  also  estop  him 
from  setting  up  the  first  mortgage  against  the  second  mortgagee.^ 

Upon  this  principle,  also,  when  one  who  has  conveyed  land 
with  warranty,  which  is  subject  to  a  mortgage,  whether  made  by 
him  or  by  another,  afterwards  takes  an  assignment  of  such  mort- 
gage, he  holds  it  for  the  benefit  of  the  person  to  whom  he  has 
granted  the  land,  and  the  mortgage  is  in  fact  discharged  by  com- 
ing into  his  hands.  Even  if  he  should  assign  it  to  one  who  in  good 
faith  pays^full  consideration  for  it,  the  purchaser  would  acquire 
no  lien  upon  the  land.^ 

When  one  sells  land  by  warranty  a  mortgage  held  by  him  upon 
the  land  at  that  time  is  extinguished,  unless  it  was  understood  by 
the  grantee  that  it  should  be  continued  in  force  for  his  benefit  ;^ 
but  this  rule,  of  course,  does  not  apply  to  a  mortgage  taken  for 
the  purchase  money  of  a  sale,  although  the  mortgage  bear  an 
earlier  date  than  the  deed  of  sale.*  In  like  manner  if  the  owner 
mortgage  the  estate  without  noticing  the  mortgage  title  held  by 
him,  it  is  regarded  as  merged.^ 

868.  An  assignment  to  the  o"vvner  of  the  equity  of  redemp- 
tion -who  is  not  the  original  mortgagor,  but  a  subsequent  pur- 
chaser, will  not  generally  operate  as  a  discharge  or  merger  of  the 
mortgage,  because  it  is  his  manifest  interest  to  hold  the  two  dif- 
ferent titles  distinct,  if  he  has  any  occasion  for  protection  against 
any  other  intervening  intei-est  or  title.^  In  such  case  it  is  imma- 
terial whether  the  transfer  be  effected  by  an  assignment  in  the 
usual  form,  or  by  a  deed  of  release  or  quitclaim.  If  such  pur- 
chaser of  the  equity  of  redemption  obtains  an  assignment  of  the 
mortgage  pending  a  bill  against  the  mortgagor  for  a  foreclosure, 

1  Butler  V.   Seward,  10  Allen  (Mass.),  *  Fish  v.  Gordon,  10  Vt.  288. 

466.     Otherwise  under  a  quitclaim  deed,  ^  Tyler  v.  Lake,  4  Sim.  351. 

Comstock  V.  Smith,  13  Pick.  (Mass.)  116  ;  o  Savage  ;;.  Hall,  12  Gray  (Mass.),  363  ; 

Trull  V.  Eastman,  3  Met.  (Mass.)  121.  Grover  v.  Thatcher,  4  lb.  526  ;  Wynian  v. 

-  Mickles  v.  Townsend,  18  N.  Y.  575;  Hooper,  2  lb.  141,  145;  Loud  v.  Lane,  8 

Collins  V.  Tony,  7  Johns.  (N.  Y.)  278.  Met.   (Mass.)    517  ;    Pitts  v.  Aldrich,   11 

8  Stoddard  v.  Rotton,  5  Bosw.  (N.  Y.)  Allen  (Mass.),  39. 
378. 

669 


§  869.]  MERGER  AND  SUBROGATION. 

he  may,  with  the  consent  of  the  mortgagee,  prosecute  the  suit  to 
a  decree  of  foreclosure  and  sale,  for  the  purpose  of  more  effectu- 
ally securing  his  title.^ 

Some  of  the  earlier  cases  in  England  seemed  to  incline  strongly 
against  allowing  a  purchaser  of  the  equity  of  redemption  to  keep 
up  a  mortgage  charge  upon  the  property  for  his  own  benefit,  and 
to  defeat  subsequent  incumbrances  ;  but  the  later  cases  hold  that 
such  purchaser,  having  paid  off  a  first  mortgage,  may,  when  he 
has  shown  an  intention  of  doing  so,  stand  in  the  first  mortgagee's 
place  against  the  next  incumbrancer.^ 

869.  Payment  of  mortgage  by  purchaser  of  the  equity  of 
redemption.  —  The  rule  that  payment  by  a  mortgagor  extin- 
guishes the  mortgage  is  founded  upon  the  reason  that  there  could 
generally  be  no  advantage  to  him  in  keeping  on  foot  his  own 
mortgage  against  his  own  estate.  But  no  such  reason  exists 
when  a  purchaser  pays  an  incumbrance  existing  before  the  time 
of  his  purchase.  Very  frequently  in  such  case  there  is  an  advan- 
tage in  keeping  the  mortgage  on  foot  as  a  security  ;  and  whenever 
there  is  such  advantage  the  purchaser  is  entitled  to  hold  it  as  a 
sepai'ate  title.^ 

If  a  mortgage  be  paid  by  a  person  not  personally  liable,  for 
the  purpose  of  protecting  his  estate,  he  may  have  the  benefit  of 
it  in  aid  of  his  title,  without  any  assignment  to  him,  or  proof 
of  an  intention  on  his  part  to  keep  it  alive.^  And  even  if  the 
mortgage  be  discharged  of  record  without  consideration,  but  for 
the  sole  benefit  of  the  owner  of  the  equity,  the  mortgage  is  not 
extinguished  as  to  a  subsequent  mortgagee ;  but  he  must  redeem 
this  mortgage  from  such  owner  before  he  will  be  allowed  to  fore- 
close his  own  mortgage.^  If,  however,  there  be  any  obligation  on 
his  part  to  pay  the  debt,  he  cannot  stand  upon  the  mortgage  paid 
to  help  his  title  as  against  the  party  whom  he  is  bound  to  protect 
against  the  mortgage.^ 

1  Mobile  Branch  Bank  v.  Hunt,  8  Ala.  Chandler,  7  Me.  377  ;  Carll  v.  Butman, 
876.  lb.  102. 

2  Watts  V.  Syraes,  1  De  G.,  Mac.  &  G.  *  Walker  v.  King,  44  Vt.  601 ;  Walker 
240,  reviewing  the  earlier  cases.  v.  King,  45  Vt.  52.5  ;  Wheeler  v.  Willard, 

8  Abbott  V.   Kasson,    72   Pa.   St.    183;  44  Vt.  640;  Warren  v.  Warren,  30  Vt. 

Millspaugh  v.  McBride,  7   Paige  (N.  Y.),  530. 

509;  Skeel  v.  Spraker,  8  Paige  (N.  Y.),  »  Spaulding  v.  Crane,  46  Vt.  292. 

182  ;  Pool  V.  Hathaway,  22  Me.  85;  Hatch  ^  McDaniels  v.  Flower  Brook  Manuf. 

V.  Kimball,   16   Me.  146  ;    Thompson  i;,  Co.  22  Vt.  274. 
670 


MERGER.  [§  870. 

If,  however,  the  incumbrance  be  paid  by  a  mere  volunteer  or 
stranger  to  the  title,  having  no  interest  to  make  the  payment  for 
his  own  protection,  the  payment  is  not  compulsory,  and  the  party 
paying  cannot  be  treated  as  an  equitable  assignee  of  the  mort- 
gage.i 

870.  Acquisition  of  the  equity  of  redemption  by  the  mort- 
gagee. —  Although,  as  elsewhere  explained,  the  purchase  of  the 
mortgagor's  equity  of  redemption  by  the  mortgagee  is  looked 
upon  with  suspicion  by  the  courts,  because  he  has,  by  reason  of  his 
position  as  creditor,  a  certain  advantage  over  the  mortgagor  which 
may  be  abused,  yet  if  the  purchase  be  free  from  fraud,  and  for 
an  adequate  price,  it  is  sustained.^  This  objection,  however,  does 
not  apply  with  equal  force  when  he  purchases  the  equity  of  re- 
demption from  one  who  has  purchased  it  of  the  mortgagor,  or 
when  he  purchases  at  an  execution  sale  had  at  the  instance  of  a 
stranger.  The  mortgagee,  while  he  is  not  generally  permitted  to 
sell  the  equity  of  redemption  under  an  execution  obtained  upon 
the  mortgage  debt,  may  generally  do  so  under  an  execution  for 
any  other  debt  to  him,  and  may  purchase  at  the  sale.  But  the 
result  of  his  acquiring  the  equity  of  redemption  in  either  way  is 
generally  to  merge  his  mortgage  title  in  it,  unless  there  be  some 
reason  why  he  should  keep  the  titles  separate.^ 

When  a  mortgagor  pays  his  mortgage  debt,  his  object  is  gen- 
erally to  fulfil  the  personal  obligation  of  payment,  and  relieve  his 
estate  of  the  incumbrance. 

When  a  mortgagee  acquires  the  equity  of  redemption  it  is  gen- 
erally because  he  wants  a  settlement,  and  can  get  nothing  more 
than  the  full  control  of  the  property,  or  else  because  he  has  use 
for  the  mortgage  land,  and  wants  an  absolute  title  to  it.  In  either 
case  his  primary  object  is  to  perfect  the  title  in  himself.  It  must 
follow  therefore  that  while,  as  a  general  rule,  the  mortgagor's  in- 
tention is  to  extinguish  the  mortgage,  the  mortgagee  on  the  other 
hand  almost  always  desires  to  hold  the  title  he  has,  and  simply  to 
acquire  the  title  which  he  has  not.  Hence  it  will  be  noticed  in 
examining  these  two  classes  of  cases,  that  a  merger  of  the  estates 
occurs  much  more  frequently  in  the  mortgagor  than  in  the  mort- 

1  Downer  u.  Wilson,  33  Vt.  1.  '  Barnes   v.  Brown,  supra;  Weiner  v. 

2  See,  also,  Barnes  v.  Brown,  71  N.  C.     Heintz,  17  111.  259. 
507  :  West  v.  Reed,  55  111.  242.    §  1042. 

671 


§  871.]  MERGER   AND   SUBROGATION. 

gagee,  and  that  the  expressions  against  a  merger  are  much  more 
decided  when  the  estates  unite  in  the  latter  than  when  they  unite 
in  the  former ;  the  different  rehitions  in  which  the  two  persons 
stand  to  the  debt  and  to  the  property  account  for  this  :  their  in- 
tentions are  generally  different. 

There  is,  generally,  an  advantage  to  the  mortgagee  in  preserv- 
ing his  mortgage  title  ;  and  when  there  is,  no  merger  takes  place. 
It  is  a  general  rule,  therefore,  that  the  mortgagee's  acquisition  of 
the  equity  of  redemption  does  not  merge  his  legal  estate  as  mort- 
gagee so  as  to  prevent  his  setting  up  his  mortgage  to  defeat  an  in- 
termediate title,  if  such  appears  to  have  been  the  intention  of  the 
parties  and  justice  requires  it.^ 

If  the  mortgagee  has  already  transferred  his  mortgage  as  col- 
lateral security  for  the  payment  of  a  debt  at  the  time  he  pur- 
chased the  equity  of  redemption,  there  can  be  no  pretence  that  a 
merger  takes  place,  for  the  different  estates  in  such  case  do  not 
vest  in  the  same  person.^  Nor  can  there  reasonably  be  any  such 
pretence  when  the  deed  itself  to  the  mortgagee  refers  to  the  mort- 
gage as  a  subsisting  lien,  and  is  expressly  made  subject  to  it.^ 

871.  If  a  mortgagee  purchase  the  equity  of  redemption, 
and  give  up  the  mortgage  note  without  intending  this  to  oper- 
ate as  a  payment,  the  mortgage  not  being  discharged,  there  is  no 
merger  or  extinguishment  of  the  mortgage,  as  against  an  inter- 
vening title,  as  for  instance  by  levy,  judgment,  or  conveyance.* 
The  assignee  of  a  mortgage  covering  two  separate  parcels  of  land, 
having  purchased  one  of  them,  can  collect  only  the  ratable  pro- 
portion from  the  other  ;  ^  and  so  if  the  assignee  of  a  mortgage 
take  a  conveyance  of  the  equity  of  redemption  of  one  half  of  the 
mortgaged  premises  described  as  one  lot,  this  operates  ^to   extin- 

1  Mulford  V.  Peterson,  35  N.  J.  L.  127;  2  Campbell  v.  Vedder,  1  Abb.  (N.  Y.) 

Duncan  v.  Smith,  2  Vroom  (N.  J.),  325;  App.  Dec.  295  ;  Kellogg  v.  Ames,  41   N. 

Thompson  v.  Boyd,  1  Zab.  (N.  J.)  58;  S.  Y.  259,  reversing  41  Barb.  218;  White  v. 

C.  2  lb.  543;  Woodhull  v.  Reid,  1  Harr.  Hampton,  13  Iowa,  259. 

(N.  J.)  128  ;  Freeman  v.  Paul,  3  Me.  260;  3  Campbell  v.  Vedder,  supra,-  Sheldon 

Mallory    v.   Hitchcock,    29    Conn.    127;  i;.  Edwards,  35  N.  Y.  279. 

Wickersham    v.    Reeves,    1    Iowa,    413;  *  New  Eng.  Jewelry  Co.  i;.  Merriam,  2 

Knowles  v.  Lawton,  18  Ga.  476  ;  Pithian  Allen  (Mass.),  390  ;  Mulford  v.  Peterson, 

V.  Corwin,  17   Ohio   St.   118;  Walker  v.  35  N.  J.  L.  127;  Walker  y.  Baxter,  26  Vt. 

Baxter,  26  Vt.  710;  Forbes  v.  Moffatt,  18  710. 

Ves.  384  a;  Slocum  v.  Catlin,  22  Vt.  137.  ^  Colton  v.  Colton,  3  PhU.  (Pa.)  24, 

672 


MERGER.  [§§  872,  873. 

gaish  only  a  part  of  the  mortgage  debt,  leaving  the  assignee  at 
liberty  to  foreclose  for  the  residue.^ 

872.  Purchasers  cannot  rely  upon  the  record  as  sho-wing 
merger.  —  Inasmuch,  therefore,  as  merger  takes  place  or  not,  ac- 
cording to  the  actual  or  presumed  intention  of  the  mortgagee, 
subsequent  purchasers  cannot  rely  upon  the  record  as  showing 
merger.  They  must  go  beyond  this,  and  ascertain  whether  there 
has  been  a  merger  in  fact ;  and  they  act  at  their  own  peril  if 
they  do  not  require  their  grantor  to  produce  the  mortgage  and 
note  supposed  to  be  merged,  and  discharge  the  mortgage  of  rec- 
ord, or  show  that  it  constitutes  a  part  of  the  title  to  the  estate.^ 
If  there  has  been  no  merger,  and  the  mortgage  title  remains  as 
a  separate  interest,  it  is,  of  course,  essential  for  the  purchaser  to 
purchase  this  title,  as  well  as  the  equity  of  redemption  ;  but,  as 
has  elsewhere  been  shown,  one  who  buys  a  mortgage  without 
requiring  the  delivery  of  the  mortgage  note  or  bond  is  charge- 
able with  notice  that  it  has  been  assigned  to  some  one  else  :  he  is 
not  a  purchaser  in  good  faith,  but  is  chargeable  with  knowledge 
of  fraud.  Therefore,  although  he  may  purchase  from  one  who 
by  the  records  appears  to  be  the  owner  of  the  entire  estate,  hold- 
ing the  equity  of  redemption  from  one  source  and  the  mortgage 
from  another,  and  although  he  takes  a  conveyance  with  full  cov- 
enants of  warranty,  it  may  turn  out  that  some  other  person  has  a 
valid  title  to  the  mortgage.^ 

873.  Such  acquisition  may  be  regarded  as  an  extinguish- 
ment of  the  equity  rather  than  a  merger  of  the  mortgage.  — 
When  a  mortgagor  releases  to  his  mortgagee,  instead  of  regarding 
the  result  to  be  a  merger  at  law  of  one  estate  in  the  othei-,  it 
may  more  properly,  perhaps,  under  the  common  law  doctrine  of 
mortgages,  be  deemed  to  be  merely  an  extinguishment  of  the 
right  of  redemption.  This  was  the  view  taken  by  Mr.  Justice 
Story  in  a  case  before   him  in  the  United  States  Circuit  Court.'* 

1  Klock  i;.  Cronkbite,  1  Hill  (N.  Y.),  see  Stantons  i-.  Thompson,  49  N.  H.  272, 
107.  where  a  release  of  the  equity  of  redemp- 

2  Aiken  V.  Milwaukee  &  St.  Paul  R.  R.  tion  had  been  made  to  the  mortgagee. 
Co.  37  Wis.  469  ;  Morgan  v.  Hammett, 34  Chief  Justice  Bellows  said:  "It  was  not 
Wis.  512.  the  drowning  of  a  lesser  estate,  for  the 

3  Purdv  V.  Huntington,  42  N.  Y.  334.        estate  was  already  a  fee  simple.     This  is 
*  Dexter  v.  Harris,  2  Mason,  531 ;  and    certainly  more  in  accordance  with  the  or- 

VOL.  I.  43  673 


§  873.]  MERGER   AND   SUBROGATION. 

"  As  to  the  merger,"  he  said,  "  it  is  clear  that  there  can  be  no 
such  operation,  as  the  argument  supposes.  At  hiw,  by  the  mort- 
gage, a  conditional  estate  in  fee  simple  passed  to  the  mortgagee ; 
and  the  only  operation  of  the  conveyance  of  Aldrich  would  be  to 
extinguish  the  equity  of  redemption,  and  thus  to  remove  the  con- 
dition. If  that  conveyance  was  good,  it  had  the  effect  not  to 
nelarge  the  estate,  but  to  extinguish  a  right.  It  was  not  the 
drowning  of  a  lesser  in  a  greater  estate,  for  the  estate  was  already 
a  fee  simple  ;  but  it  was  an  extinguishment  of  the  condition  or 
equity."  Of  course  this  doctrine  would  not  be  held  where  a 
mortgage  is  regarded  not  as  an  estate  in  fee,  but  merely  as  a  lien, 
the  fee  and  general  ownership  remaining  in  the  mortgagor ;  but 
the  lesser  interest  would  merge  in  the  greater. 

Even  when  the  parties  have  undertaken  to  discharge  the  mort- 
gage upon  the  uniting  of  the  estates  of  the  mortgagor  and  mort- 
gagee in  the  latter,  it  will  still  be  upheld  as  a  source  of  title 
whenever  it  is  for  his  interest,  by  reason  of  some  intervening 
title  or  other  cause,  that  it  should  not  be  regarded  as  merged. 
"  This  is  based  upon  the  presumption  as  matter  of  law,"  says 
Chief  Justice  Bellows  of  New  Hampshire,^  "  that  the  party  must 
have  intended  to  keep  on  foot  his  mortgage  title,  when  it  was 
essential  to  his  security  against  an  intervening  title,  or  for  other 
purposes  of  security  ;  and  it  is  no  matter  whether  the  parties 
through  ignorance  of  such  intervening  title,  or  through  inadver- 
tence, actually  discharged  the  mortgage  and  cancelled  the  notes, 
and  really  intended  to  extinguish  them  ;  still,  on  its  being  made 
to  appear  that  such  intervening  title  existed,  the  law  would  pre- 
sume conclusively  that  the  mortgagee  could  not  have  intended 
to  postpone  his  mortgage  to  the  subsequent  title  ....  Of 
course,  cases  might  be  conceived  when  the  purpose  to  extinguish 
the  mortgage,  notwithstanding  an  intervening  title,  was  clearly 
manifested,  as  when  the  very  object  was  to  postpone  the  first  to 
a  second  mortgage,  and  the  mortgagor  was  willing  to  surrender 

dinary  understanding  upon  the  subject,  of  the  mortgage  title  or  not,  we  should 
which  looks  upon  such  a  release  in  general  ordinarily  find  that  there  was  no  intention 
as  merely  a  foreclosure  of  the  mortgage,  to  extinguish  the  mortgage  title,  but  to 
and  not  an  extinguishment  of  it,  and  that  make  it  absolute,  as  by  any  other  mode 
is  shown  by  the  fact  that  these  releases  are  of  foreclosure,  and  thus  to  apply  the  prop- 
usually  without  warranty  of  title.  If  we  erty  pledged  to  the  satisfaction  of  the 
look  then  to  the  intention  of  the  parties,  debt." 
in  determining  whether  there  is  a  merger        ^  Stantons  v.  Thompson,  49  N.  H.  272 

674 


SUBROGATION.  [§  874. 

his  interest  to  effect  that  object.  In  such  a  case  it  would  be  un- 
just to  the  mortgagor  to  uphold  the  first  mortgage,  and  it  would 
not  be  done  ;  but  in  ordinary  cases  it  would  be  just  to  allow  the 
person  in  whom  the  two  estates  were  united,  to  keep  on  foot 
his  mortgage  as  security  against  an  intervening  title,  in  respect 
to  which  he  had  come  under  no  obligations  either  to  the  holder 
or  the  mortgagor." 

It  niaj'-,  therefore,  be  deduced  from  the  authorities  as  a  general 
rule,  that  when  the  mortgagee  acquires  the  equity  of  redemption 
in  whatever  way,  and  whatever  he  does  with  his  mortgage,  he 
will  be  regarded  as  holding  the  legal  and  equitable  titles  sepa- 
rately, if  his  interest  requires  this  severance.^  The  law  presumes 
the  intention  to  be  in  accordance  with  his  real  interest,  whatever 
he  may  at  the  time  have  seemed  to  intend. 

Where  a  purchaser  of  the  equity  of  redemption  conveyed  the 
land  by  warranty  deed  to  the  mortgagee,  but  did  not  take  up  the 
original  notes  or  procure  a  discharge,  but  on  the  other  hand  took 
a  bond  for  a  conveyance  of  the  land  upon  the  payment  of  the 
original  notes  within  a  limited  time,  it  was  held  that  the  mort- 
gage was  not  discharged,  nor  was  an  absolute  title  vested  in  the 
mortgagee  subject  only  to  the  stipulations  of  the  bond,  but  that 
the  transaction  was  merely  a  reaffirming  of  the  mortgage,  with 
an  extension  of  the  time  of  payment.^ 


PART  n. 

SUBROGATION. 

874.  Subrogation  arises  by  operation  of  law  whenever  the 
mortgage  debt  has  been  extinguished  by  one  other  than  the  debt- 
or, entitled  to  redeem.  An  assignment  implies  a  continued  ex- 
istence of  the  debt,  and  the  equitable  right  does  not  then  arise.^ 
"  The  subrogation  or  substitution,  by  operation  of  law,  to  the 
rights  and  interests  of  the  mortgagee  in  the  land  is  on  and  by 
erdemption  ;  and  redemption  is  payment  of  the  mortgage  debt, 
after  forfeiture,  by  the  terms  of  the  mortgage  contract ;  so  that, 

1  Stantons  r.  Thompson,  supra  •  Besser  ^  pgr  Mr.  Justice  Colt,  in  Lamb  v, 
V.  Hawthorne,  3  Oregon,  129.  Montague,  112  Mass.  352. 

a  Bailey  v.  Myrick,  50  Me.  171. 

675 


§  874.]  MERGER  AND  SUBROGATION. 

really  the  subrogation  or  substitution,  by  operation  of  law,  arises 
or  proceeds  on  the  theory  that  the  mortgage  debt  is  paid.  If  the 
holder  of  a  bond  and  mortgage  assigns  them  to  a  party  claiming 
a  right  to  redeem,  the  latter  is  subrogated,  by  the  assignment,  to 
the  mortgage  debt  and  mortgage  security,  and  to  the  instruments 
evidencing  such  debt  and  security,  and  there  is  no  room  or  occa- 
sion for  subrogation  by  operation  of  law."  ^ 

"  Subrogation  generally  takes  place  between  co-creditors,  where 
the  junior  pays  the  debt  due  to  the  senior,  to  secure  his  own 
claim  ;  or  it  arises  from  the  transactions  of  principals  and  sure- 
ties, and  sometimes  between  co-sureties  or  co-guarantors.  It  is 
not  allowed  to  volunteer  purchasers  or  strangers,  unless  there  is 
some  peculiar  equitable  relation  in  the  transaction,  and  never  to 
mere  meddlers.  But  while  this  is  the  rule  generally,  we  think 
that  a  person  who  has  paid  a  debt  under  a  colorable  obligation  to 
do  so,  that  he  may  protect  his  own  claim,  should  be  subrogated  to 
the  rights  of  the  creditor."  ^  A  purchaser  at  a  foreclosure  sale, 
supposing  that  he  had  obtained  a  good  title  by  his  purchase,  sold 
the  land  to  another  by  warranty  deed.  The  mortgagor  having 
recovered  the  land  on  account  of  irregularities  in  the  foreclosure 
sale,  the  purchaser  at  the  foreclosure  sale  was  sued  upon  his  cov- 
enant of  warranty  in  his  deed  of  the  property,  and  was  obliged 
to  pay  the  value  of  it.  But  it  was  held  that  he  was  entitled  to 
be  subrogated  to  the  rights  of  the  mortgagee,  as  an  equitable  as- 
signee.^ 

Under  the  equitable  principle  of  subrogation,  one  who  pays  a 
debt  for  the  benefit  of  another,  whether  voluntarily  or  for  his  own 
protection,  acquires  a  right  to  the  security  held  by  the  other ;  and 
upon  the  same  principle  a  principal  creditor  succeeds  to  the  secu- 
rity held  by  a  surety  whose  liability  has  become  fixed. 

If  the  surety's  liability  has  never  become  fixed  and  absolute, 
either  by  his  having  been  obliged  to  pay  the  debt  for  which  he  is 
surety  or  by  a  judgment  against  him,  the  principal  creditor  cannot 
claim  the  security  by  subrogation.* 

The  right  of  subrogation  applies  in  general  in  favor  of  any  per- 
son who,  not  being  under  any  obligation  to  pay  the  mortgage  debt, 

1  Per  Mr.  Justice  Sutherland,  in   Ells-        ^  Muir  r.  Berkshire,  s!<pra. 

worth  V.  Lockwood,  42  N.  Y.  89,  97.  ■*  Grant  v.  Ludlow,  8  Ohio  St.  1  ;  Mc- 

2  Per  Chief  Justice  Biddle,  Muir  v.  Cullum  v.  Hinckley,  9  Vt.  149 ;  Planters, 
Berkshire,  52  Ind.  149.  Bank  v.  Douglass,  2  Head  (Tenn.),  699. 

676 


SUBROGATION.  [§§  875-877. 

does  so  for  the  benefit  of  the  debtor ;  ^  as  by  furnishing  money  to 
the  mortgagor  to  take  up  the  mortgage  under  an  agreement  to  ex- 
ecute a  new  one  ;  ^  or  by  a  purchaser's  paying  a  judgment  in  scire 
facias  against  the  mortgagor.^  So,  also,  a  junior  incumbrancer 
who  pays  a  prior  incumbrance  upon  the  property  is  thereby  subro- 
gated to  the  security.^ 

875.  The  rule  as  to  marshalling  assets  applies  as  between 
different  creditors,  so  that  where  one  has  two  funds  and  the 
other  only  one  of  them,  the  former  is  required  to  satisfy  his  claim 
out  of  the  fund  upon  which  the  other  has  no  lien.  It  is  not  ap- 
plicable as  between  a  debtor  and  creditor ;  and  the  mortgagor 
cannot  compel  a  mortgagee  to  resort  to  the  land,  the  equity  of 
redemption  of  which  has  been  sold  on  execution,  instead  of  pro- 
ceeding on  the  mortgage  note  to  collect  the  debt.^ 

876.  The  test  of  the  right  of  subrogation  is  found  in  answer 
to  the  inquiry  whether  the  person  who  paid  the  mortgage  debt  is 
the  one  whose  duty  it  was  to  pay  it  first  of  all  ;  if  the  debt  was 
not  primarily  his,  and  he  only  occupied  the  position  of  surety  to 
the  mortgagor,  he  is  entitled  to  be  subrogated  to  the  position  of 
the  mortgagee  when  he  has  paid  the  debt.^ 

A  mortgage  discharged  of  record  may  be  reinstated  when  it  has 
been  paid  by  one  who  had  bought  the  premises  subject  to  the 
mortgage,  and  in  ignorance  of  the  existence  of  a  judgment  lien 
subsequent  to  the  mortgage.  Upon  payment  he  was  entitled  to 
all  the  rights  of  the  mortgage,  and,  according  to  the  law  in  New 
York,  to  an  assignment  of  the  mortgage ;  and  having  caused  it  to 
be  satisfied  under  circumstances  authorizing  an  inference  of  a  mis- 
take of  fact,  equity  will  presume  such  mistake  and  give  him  the 
benefit  of  the  equitable  right  of  subrogation." 

877.  "When  a  mortgage  is  paid  by  one  who  is  under  no 

1  Carter  v.  Taylor,  3  Head  (Tenn.),  30  ;         5  Rogers  v.  Meyers,  68  111.  92.  See  §  728 
Roddy's  Appeal,  72  Pa.  St.  93.  '^  Russell  v.  Pistor,  7  N.  Y.  171  ;  Klock 

2  Lockwood  V.  Marsh,  3  Nev.  138.  v.  Cronkhite,  1  Hill  (N.  Y.),  107 ;  Tice  v. 
8  Matteson  y.  Thomas,  41  111.  110.  Annin,  2  Johns.  (N.  Y.)  Ch.  125;  Mc- 
*  Dings   V.   Parshall,  7   Hun    (N.  Y.),     Given  i-.  Wheelock,  7  Barb.   (N.  Y.)  22  ; 

522 ;  Ellsworth   v.  Lockwood,   42  N.  Y.     Rogers  v.  Traders'  Ins.  Co.  6  Paige  (N. 

89,  96;   Brainard   v.   Cooper,   10    N.  Y.     Y.),  .')83. 

356  ''  Barnes  i-.  Mott,  64  N.  Y.  397. 

677 


§  878.]  MERGER  AND  SUBROGATION. 

obligation  to  pay  it,  although  he  does  not  take  a  formal  assign- 
ment of  it,  he  is  subrogated  to  the  rights  of  the  mortgagee  in  the 
mortgaged  property,  and  holds  the  title  so  acquired  as  against  sub- 
sequent incumbrances,  although  he  had  also  acquired  the  equity 
of  redemption.  In  such  caseno  proof  of  intention  on  his  part 
to  keep  the  mortgage  alive  is  necessary  to  give  him  the  benefit 
of  it.  His  payment  of  the  mortgage,  together  with  his  relation 
to  the  estate,  bring  it  in  aid  of  his  title  to  strengthen  and  up- 
hold it.i 

When  a  third  person,  at  the  instance  of  the  mortgagor,  pays 
part  of  the  mortgage  debt,  but  takes  no  assignment  of  the  mort- 
gage, and  no  agreement  for  any,  he  is  not  thereby  subrogated  to 
the  right  of  the  mortgagee  as  against  a  subsequent  incumbrance : 
to  effect  such  subrogation  there  must  be  something  more  than 
me^e  payment,  and  silent  receipt  of  the  money  by  the  mort- 
gagee.^ 

Even  if  a  person  advancing  money  to  pay  a  mortgage  under  an 
agreement  with  the  owner  of  the  equity  of  redemption  that  it 
should  be  assigned  to  him  as  security  for  the  money  advanced, 
takes  a  discharge  of  the  mortgage,  he  is  entitled  to  be  subrogated 
to  the  rights  of  the  mortgagee  and  have  the  discharge  vacated.^ 

878.  Where  a  mortgagee  has  been  compelled,  for  his  own 
protection,  to  pay  the  amount  of  a  prior  mortgage  upon  the 
property,  and  instead  of  taking  an  assignment  of  the  mortgage  so 
paid,  this  is  discharged  of  record,  he  is  nevertheless  entitled  to 
indemnify  himself  for  this  payment  out  of  the  mortgaged  estate. 
But  if,  in  the  mean  time,  a  bond  fide  purchaser,  relying  upon  the 
record,  has  bought  the  estate  subject  only  to  the  second  mort- 
gage, the  amount  of  the  first  mortgage  so  paid  could  not,  it  would 
seem,  be  claimed  out  of  the  estate  as  against  him.  Where,  how- 
ever, the  whole  amount  claimed  by  the  junior  mortgagee  upon  his 
own  mortgage,  and  that  paid  off  by  him  was  less  than  the  amount 
of  his  own  mortgage  and  interest  as  it  stood  upon  record,  he  was 

1  Walker  v.  King,  45  Vt.  525 ;  44  lb.  2  Virginia  v.  Ches.  &  Ohio  Canal  Co. 

601,  and  see  cases  cited;  Wheeler  v.  Wil-  32   Md.   501,  546;  Swan  v.  Patterson,  7 

lard,  44  Vt.  640;  Tichout  v.  Harmon,   2  Md.  164. 

Aik.  (Vt.)  37;  Robinson  v.  Urquhart,  12  ^  Morgan  v.  Haramett,  23  Wis.  30. 
N.  J.  Eq.  (1  Beas.)  515;  White  v.  Hamp- 
ton, 13  Iowa,  259. 

678 


SUBROGATION.  [§  879. 

allowed,  in  a  suit  against  him  for  redemption,  to  reimburse  him- 
self for  the  sum  so  paid.^ 

When  a  junior  incumbrancer  redeems  from  a  prior  lien,  inter- 
mediate or  subsequent  incumbrancers,  in  equity,  must  refund  the 
redemption  money,  or  pay  all  liens  anterior  to  theirs  before  they 
can  enforce  their  claims  upon  the  property.  The  j  unior  mortgagee, 
by  redeeming  from  the  prior  mortgage,  is  subrogated  to  the  rights 
of  the  first  mortgagee.  If  it  were  otherwise,  it  would  be  impossi- 
ble, in  a  large  number  of  cases,  for  a  junior  mortgagee  to  secure 
his  debt,  as  the  first  mortgagee  is  not  obliged  to  assign  his  mort- 
gage on  payment.^ 

The  same  rule  prevails  when  the  mortgagor  sells  and  conveys 
a  portion  of  the  mortgaged  premises,  subject  to  the  mortgage, 
and  the  purchaser  retains  enough  of  the  purcliase  money  to  satisfy 
the  mortgage  and  agrees  to  pay  it ;  the  mortgagor  and  purchaser 
stand  in  the  relation  of  principal  and  surety  as  to  the  mortgage 
debt,  and  the  premises  sold  are  primarily  chargeable  with  the  pay- 
ment of  it.^ 

If  one  joint  mortgagor,  in  order  to  protect  his  interest,  pays  the 
joint  debt,  he  is  subrogated  to  the  interest  of  his  joint  mortgagor 
until  he  is  repaid.* 

879.  If  a  mortgagor  purchase  his  own  mortgage  on  land 
that  he  has  sold  subject  to  the  mortgage  which  the  purchaser 
has  agreed  to  pay  as  part  of  the  consideration  of  the  sale,  the 
bond  or  note  is,  of  course,  rendered  unavailing ;  but  the  mortgage 
having  become  the  principal  security  for  the  payment  of  the  debt, 
the  mortgagor,  without  taking  an  assignment  of  the  mortgage,  is 
entitled  to  be  subrogated  to  this  security,  and  to  be  repaid  out  of 
the  land  what  he  has  paid  upon  the  mortgage  debt.^ 

If  the  niortgagee,  with  knowledge  of  the  mortgagor's  right  to 
have  the  property  applied  to  the  payment  of  the  mortgage  debt, 
does  anything  to  impair  this  right,  as  for  instance  if  he  releases 
a  portion  of  the  mortgaged  premises,  he  must  suffer  the  loss  him- 
self, by  being  deprived  to  that  extent  of  his  right  of  recourse  to 

1  Davis  c.  Winn,  2  Allen  (Mass.),  HI-  *  Fisher  i:  Dillon,  G2  111.  .379. 

2  Flachs  V.  Kelly,  30  111.  462  ;  Downer  ^  Stillinan  v.  Stillman,  21  N.  J.  Eq. 
V.  Fox.  20  Vt.  388.    Sec  §  1086.  126. 

3  Ilusscll  V.  Pistor,  7  N.  Y.  171  ;  Ilalsey 
V.  Reed,  9  Paige  (N.  Y.),  446. 

679 


§§  880,  881.]  MERGER    AND    SUBROGATION. 

the   mortgagor,  who,  in    such   case,  stands  in  the  position  of  a 
surety.^ 

880,  "When  mortgage  is  enforced  upon  other  property  of  the 
mortgagor.  —  When  an  equity  of  redemption  has  been  sold  upon 
execution  for  a  debt  other  than  that  secured  by  mortgage  on  the 
premises,  the  purchaser  acquires  only  an  estate  subject  to  the 
mortgage  debt,  and  if  this  be  subsequently  enforced  from  other 
property  of  the  mortgagor,  he  will  be  subrogated  to  all  the  rights 
of  the  mortgagee  under  this  mortgage,  and  thus  protect  himself 
against  the  purchaser  under  execution.  The  rule  is  the  same 
where  sale  is  made  of  a  part  of  the  mortgaged  premises  under 
execution  obtained  upon  one  of  several  mortgage  notes.  The  pur- 
chaser takes  the  property  subject  to  the  payment  of  a  share  of  the 
mortgage  debt  remaining  unsatisfied.^ 

881.  An  indorser  or  surety  of  a  note  upon  being  compelled 
to  pay  it  is  entitled  to  the  benefit  of  any  security,  as  for  in- 
stance a  mortgage  given  by  the  principal  debtor  to  the  holder  of 
the  note  to  secure  it.  Without  any  assignment  of  it  he  is  by  force 
of  law  subrogated  to  the  benefit  of  it.^  In  like  manner,  when  a 
mortgage  has  been  assigned  by  a  debtor  to  a  surety  or  indorser,  or 
to  a  trustee  for  his  benefit,  to  secure  him  against  his  liability  upon 
the  debt,  the  creditor  is  entitled  to  the  benefit  of  the  security.^ 
The  mortgage  creates  a  trust  and  equitable  lien  in  favor  of  the 
creditor,  and  this  lien  attaches  to  the  property  in  his  favor,  al- 
though the  mortgage  be  assigned.^ 

In  like  manner,  if  the  mortgagor  sells  the  premises  subject  to 
the  mortgage,  and  afterwards  either  pays  the  mortgage  debt  vol- 
untarily, or  it  is  collected  of  him  by  suit,  he  is  subrogated  to  the 
rights^of  the  mortgagee,  and  may  enforce  the  mortgage  upon  the 

1  Ingalls  V.  Morgan,  10  N.  Y.  187  ;  and  «  Curtis  v.  Tyler,  9  Paige  (N.  Y.),  432; 
see  Eddy  v.  Traver,  6  Paige  (N.  Y.),  521  ;  CuUum  v.  Branch  Bank  of  Mobile,  23 
Cheesebrough  r.  Millard,  1  Johns.  (N.  Y.)  Ala.  797;  as  to  the  right  of  a  co-surety  to 
Ch.  412.  the   benefit   of   the   security,  see   Hall   v. 

2  Punk  V.  McReynold,  33  111.  481.  Cushman,  16  N.  H.  462  ;  Low  v.  Smart,  5 
8  Drew   V.   Lockett,   32   Beavan,   499  ;     lb.  353. 

O'Hara  v.  Haas,  46  Miss.  374;  Gossin  v.        ^  Eastman  i'.  Foster,  8  Met.  (Mass.)  19  ; 
Brown,  11   Pa.  St.  527  ;  Muller  v.  Wad-     Graydon  v.  Church,  7  Mich.  36.  » 
lington,  5  S.  C.  342 ;  Ottman  v.  Moak,  3 
Sandf.  (N.  Y.)  Ch.  431. 

680 


SUBROGATION.  [§  882. 

land.^  In  such  case  the  mortj^agor,  as  between  himself  and  his 
grantee,  is  a  mere  surety  for  the  payment  of  the  debt,  and  the 
premises  are  the  primary  fund,  and  he  is  entitled  to  the  benefit 
of  it.2 

A  mortgage  given  to  several  guarantors  of  a  debt  to  indemnify 
them  against  a  joint  and  several  liability  upon  it  when  the  debt  is 
paid  by  one  of  them,  is  held  in  trust  by  the  mortgagees  for  his 
benefit.^ 

882.  Whether  surety  is  subrogated  to  the  debt  as  well  as 
the  security.  —  A  distinction  is  taken  in  the  English  cases,  which, 
however,  does  not  generally  hold  good  in  this  country,  to  the 
effect  that  while  the  surety,  upon  paying  the  debt  of  his  principal, 
is  entitled  to  the  full  benefit  of  all  collateral  securities  which  the 
creditor  has  taken  for  the  payment  of  the  debt,  yet  he  is  not  en- 
titled to  stand  in  the  creditor's  place  as  to  the  debt  itself. 

"  It  is  a  general  rule,"  says  Lord  Eldon,*  "  that  in  equity  a 
surety  is  entitled  to  the  benefit  of  all  the  securities  which  the 
creditor  has  against  the  principal,  but  then  the  nature  of  those 
securities  must  be  considered  :  when  there  is  a  bond  merely,  if  an 
action  was  brought  upon  the  bond,  it  would  appear  upon  oyer  of 
the  bond  that  the  debt  was  extinguished ;  the  general  rule,  there- 
fore, must  be  qualified,  by  considering  it  to  apply  to  such  securi- 
ties as  continue  to  exist,  and  do  not  get  back  upon  payment  to  the 
person  of  the  principal  debtor  ;  in  the  case  for  instance  where,  in 
addition  to  the  bond,  there  is  a  mortgage,  with  a  covenant  on  the 
part  of  the  principal  debtor  to  pay  the  money,  the  surety  paying 
the  money  would  be  entitled  to  say,  I  have  lost  the  benefit  of  the 
bond,  but  the  creditor  has  a  mortgage,  and  I  have  a  right  to  the 
benefit  of  the  mortgaged  estate,  which  has  not  got  back  to  the 
debtor." 


1  Baker  v.  Terrell,  8  Minn.  195.  lor,  Lord  Broufrhara,  said  :  "  The  princi- 

2  Johnson   v.   Zink,   52   Barb.  (N.  Y.)  pies  upon  which  Copis  v.  Middleton   rests 
396.  are  sound  and  unquestionable;   and  it  is 

8  Dye  V.  Mann,  10  Mich.  291.  only  upon  a  narrow  and  superficial  view 
*  See  Copis  v.  Middleton,  T.  &  R.  of  the  subject  that  the  decision  has  ever 
224,  229.  See,  also,  1  Story's  Eq.  §§  499,  been  charged  with  refinement  or  subtlety. 
499  b ;  Hodgson  v.  Shaw,  3  Myl.  &  K.  The  ground  of  the  determination  was 
190;  Craythorae  v.  Swinburne,  14  Ves.  clear:  it  was  founded  in  the  known  rules 
159,  of  law,  and  determined  in  strict  conform- 
In  Hodgson  V.  Shaw,  supra,  the  Chancel-  ity  with  the  doctrines  of  this  court." 

681 


§§  883,  884.]  MERGER   AND   SUBROGATION. 

But  if  the  debt  in  the  above  case  had  been  paid,  not  by  the 
surety  bound  in  the  same  obligation  with  the  principal,  but  by  a 
third  party,  who  had,  by  a  separate  instrument,  made  himself  lia- 
ble for  the  same  debt,  it  is  clear  that  the  reason  upon  which  the 
decision  rested  would  have  failed  altogether  ;  the  surety  would  then 
be  entitled  to  stand  in  the  shoes  of  the  creditor  in  regard  to  the 
original  debt  as  well  as  in  regard  to  the  security,^  for  the  original 
debt  is  not  in  that  case  paid. 

As  already  intimated,  the  distinction  above  taken  is  not  gener- 
ally maintained  by  the  cases  in  this  country.  The  doctrine  of  the 
cases  here  is,  that  upon  the  payment  of  a  debt  by  the  surety,  he 
is  entitled  not  only  to  the  benefit  of  the  collateral  security  but 
also  to  the  benefit  of  the  debt  as  represented  by  ^a  bond  or  note, 
and  to  an  assignment  of  them  as  well  as  of  the  mortgage,  if  an 
assignment  is  necessary  in  order  to  give  him  the  full  benefit  of 
the  same.^ 

After  a  purchaser  of  a  portion  of  the  mortgaged  estate  has  as- 
sumed the  payment  of  the  whole  mortgage,  a  purchaser  of  an- 
other portion,  upon  being  obliged  for  his  own  protection  to  pay 
it,  is  subrogated  not  only  to  the  mortgagee's  right  against  the 
land,  but  also  to  his  right  to  hold  the  purchaser,  who  has  assumed 
the  debt,  personally  liable  for  the  payment  of  it.^ 

883.  Surety  subrogated  to  securities  given  after  the  orig- 
inal contract.  —  The  surety  is  entitled,  upon  paying  the  debt,  to 
securities  given  by  the  debtor  after  the  contract  of  suretyship  as 
well  as  those  given  before  or  at  the  same  time ;  and  whether  the 
surety  knows  of  the  existence  of  the  securities  is  wholly  immate- 
rial.'^ If  he  pays  off  part  of  the  mortgage  debt,  he  is  entitled 
as  against  the  mortgagor  to  charge  upon  the  estate  the  amount 
he  has  so  paid.^  He  is  entitled,  too,  not  only  to  the  equities 
which  the  creditor  holds  against  the  principal  debtor,  but  also  to 
those  he  has  against  all  persons  claiming  under  him.^ 

884.  When  the  creditor  has  made  a  further  advance  upon 

1  Hodgson  V.  Shaw,  3  Myl.  &  K.  183,  *  Mayhew  u.  Crickett,  2  Swanst.  185. 
193.  191,  and  see  Curtis  v.  Tyler,  9  Paige  (N. 

2  Ellsworth  V.  Lockwood,  42  N.  Y.  89,     Y.),  432. 

98,  and  cases  cited.  ^  Qedye  v.  Matson,  25  Beav.  310. 

3  Rardin  v.  Walpole,  38  Ind.  146,  and         ^  Drg^  v.  Lockett,  32  Beav.  499. 
cases  cited. 

682 


SUBROGATION.  [§  885. 

the  mortgage. — But  a  surety  is  not  entitled  to  an  assignment 
from  the  creditor  of  a  mortgage  upon  which  the  creditor  has,  after 
first  taking  it,  made  a  further  advance,  unless  he  pays  off  such  ad- 
vance in  addition  to  the  original  sum  for  which  he  became  sure- 
ty ;  ^  and  the  mortgagee  not  being  prevented  from  making  the 
furtlier  advance,  it  is  immaterial  that  the  surety  did  not  know  of 
it,  and  it  was  not  contemplated  at  the  time  of  the  original  loan.^ 
But  where  there  is  a  special  contract  on  the  part  of  the  creditor 
that  the  securities  given  by  the  principal  debtor  shall  be  prima- 
rily liable,  or  that  the  surety  may  redeem  upon  paying  a  certain 
sum,  the  creditor  cannot,  as  against  him,  make  a  further  loan  to 
the  debtor,  but  must  transfer  the  securities  upon  a  tender  from 
the  surety  of  the  amount  of  the  original  loan.^ 

Where  a  loan  of  £5,000  was  made  in  two  distinct  sums,  one 
for  X  2,000  and  one  for  ,£3,000,  and  distinct  properties  were  mort- 
gaged by  separate  deeds  to  secure  these  sums,  for  the  payment  of 
the  former  of  which  a  third  person  also  became  surety,  it  was 
held  that  the  creditor's  right  to  retain  all  the  securities  until  both 
sums  were  paid  was  superior  to  the  right  of  the  surety  to  have 
the  benefit  of  the  mortgage  for  that  debt,  for  which  he  was 
surety.* 

885.  Right  of  subrogation  not  lost  by  a  renewal  of  the 
mortgage.  —  When  a  junior  incumbrancer  pays  off  a  prior  in- 
cumbrance his  right  to  be  subrogated  to  the  position  of  the  prior 
mortgagee  is  not  destroyed  by  reason  of  his  taking  from  the  mort- 
gagor a  new  mortgage  for  the  amount  of  both  the  mortgages,  and 

1  Williams  v.  Owen,  13  Sim.  597.  for  one  of  the  debts  does  not  deprive  the 

2  lb.  mortgagee  of  his  right  to  tack.     If  it  did, 
8  Bowker  v.   Bull,  1   Sim.   (N.  S.)  29.     it  would,  in  most  cases,  enable  the  mort- 

In  this  case  the  debtor  mortgaged  his  own  gagor  to  do,  in  the  name  of  his  surety, 
propert}-,  and  his  daughters,  to  secure  his  what  he  is  not  able  to  do  in  his  own  name, 
debt,  mortgaged  their  own  estate  ;  but  the  I  am  therefore  of  opinion  that  the  surety, 
deed  contained  a  proviso  that  the  father's  by  offering  to  pay,  or  by  voluntarily  pay- 
property  should  be  primarily  liable.  ing  to  the  creditor,  the  debt  for  which  he 
*  Farehrother  v.  Wodehouse,  23  Beav.  has  become  surety,  could  not  redeem  the 
18,  23.  The  Master  of  the  Rolls  said:  particular  property  which  was  made  the 
"  It  is  clear  that  the  mortgagee  may  con-  subject  of  that  mortgage,  without  also  pay- 
tract  with  the  mortgagor,  or  with  his  ing  tiie  other  debt  due  from  the  mortgagor 
surety,  that  this  right  of  separate  redemp-  to  the  mortgagee,  and  thus  redeeming  the 
tion  shall  exist  in  either  or  both  of  them,  whole  property.  In  other  words,  I  am  of 
In  the  absence  of  contract,  I  think  that  the  opinion  that,  in  this  respect,  he  can  do  no 
fact  that  a  third  person  has  become  surety  more  than  the  mortgagor  himself  could  do." 

683 


§  885.]  MERGER  AND  SUBROGATION. 

although  the  new  mortgage  be  void  on  account  of  usury.  The 
mortgagee  is  equitably  entitled  to  the  same  benefits  of  redemp- 
tion that  he  would  have  had  without  such  renewal  of  the  mort- 
gages with  the  mortgagor.  By  paying  the  prior  mortgage  debt  he 
becomes  entitled  to  a  cession  of  the  debt  and  a  subrogation  to  all 
the  rights  of  the  mortgagee,  and  the  mortgage,  as  against  the 
mortgagor,  is  to  be  regarded  as  still  existing  and  uncancelled. 
Only  the  subsequent  mortgage  is  regarded  as  void  under  the 
usury  laws.-^ 

1  Tatterson  v.  Birdsall,  64  N.  Y.  294 ;  S.  C.  6  Hun,  632. 
684 


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